Michael Foster: The hon. Lady is absolutely correct to point out the clear links between tuberculosis and HIV. Some 15 per cent. of new TB cases are among people living with HIV/AIDS. That is why we are looking to invest £6 billion to 2015 in whole-health systems and services, so that we can get diagnosis and treatment not just for people with TB or HIV/AIDS, but for people with a range of health problems.

Michael Foster: My right hon. Friend is absolutely right to point out the need for the speedy diagnosis of TB. That is why I am pleased to say that we as a Department have committed to giving some €60 million a year to UNITAID, which is aiming to triple access to rapid tests for multi-drug resistant TB by 2011.

Michael Foster: I disagree with the hon. Gentleman that our focus is on inputs and not outputs. Nothing could be further from the truth. I would point out that if we are going to get the information that he requires in detail, it would mean health workers who provide primary care on a range of issues having to break down how they spend their time diagnosing TB on the one hand and, on the other, malaria, treating people with extreme forms of diarrhoea, and so on. The best thing that we can do is support whole-health systems to improve the health of a nation, particularly through an emphasis on primary care. That is what our £6 billion commitment is all about.

Mark Lancaster: I am grateful to the Secretary of State for his answer, but he did not really make clear what changes he expects to take place. A report published recently by the London School of Economic's centre for civil society draws attention to claims by non-governmental organisations that foreign military strategies for tackling insurgency with aid projects had "infringed upon the work" of NGOs and
	"compromised their claims of independence and neutrality."
	Given the Prime Minister's commitment to pressing for greater civilian-military co-operation in Afghanistan, does the Minister feel that such criticisms are justified?

Douglas Alexander: We are providing £3 million over three years to the facility for new market development, which helps Palestinian businesses develop new products and compete in new markets. To date, the facility has supported more than 180 businesses. We are also working closely with the Palestinian Investment Promotion Agency and UK Trade & Investment to promote investment in the occupied Palestinian territories.

Julie Morgan: What discussions he has had with the government of Bangladesh on aid to tackle the environmental effects on that country of global warming.

David Cameron: The fact is that it is the right hon. Gentleman's policies that have given us the longest and deepest recession in our history. Only this Prime Minister thinks that we should all be pathetically grateful for this long and deep recession, and that he has somehow led the world when he has left Britain behind. He is normally fond of reading out lists of countries. Australia, Canada, Turkey and Brazil all went into recession after Britain, but they came out before Britain. France and Germany went into recession at the same time as Britain, yet they came out before us. Will the Prime Minister answer this question? Given that all those countries are now in growth and that we are not in growth, can he tell us what on earth he meant when he said that we were
	"leading the rest of the world... out of recession"-[ Official Report, 3 June 2009; Vol. 493, c. 268.]?

Gordon Brown: Not one policy from the Leader of the Opposition. We have taken action to restructure the banks and nationalise Northern Rock-opposed by the Opposition. We have taken action for a fiscal stimulus-opposed by the Opposition. We have taken action to keep unemployment down as a result of creating jobs-opposed by the Opposition. We have taken action for international co-operation-opposed by the Opposition. They have been wrong on the recession and they will be wrong on the recovery. The voice may be that of a modern public relations man, but the mindset is that of the 1930s.

David Cameron: It is not just Back Benchers, Mr. Speaker-the Secretary of State for Children, Schools and Families is up to his old tricks again. You would have thought that he would want to spend more time in his ultra-marginal constituency, but perhaps he agrees with us that the more he meets people, the more likely we are to win it.
	Let us look at the Prime Minister's three central claims: the claim that we were better prepared than other countries-that was wrong; our deficit was worse than other countries-the claim that Britain was leading the world out of recession-we are still in recession-and the claim that he had abolished boom and bust, which is absolute rubbish. Is it not the case that his three biggest claims are his three biggest failures?

Gordon Brown: The more he talks, the less he actually says. Nothing about policy. We have helped 200,000 businesses in this country, we have helped half a million people stay out of unemployment and we are helping people who have problems with mortgage arrears. If he wanted to reduce the deficit, why does he persist with his inheritance tax policy that would cost £1 billion? Why does he have a domestic tax policy which is to help his friends with inheritance tax cuts and a global tax policy to help non-domiciled candidates avoid any tax whatsoever?

David Cameron: Thank you, Mr. Speaker. That is another one who should be defending his marginal constituency.
	Let the Prime Minister answer this very simple question. The only person who has made a specific pledge-not just a pledge or a promise, but in legislation-to reduce inheritance tax in the coming Budget is the Prime Minister; he legislated to raise the threshold from £325,000 to £350,000. Perhaps he can tell us now: is he still planning to do that? We would like an answer.

Gordon Brown: It is interesting that this exchange started with the great ideas of economic policy and the right hon. Gentleman has ended up having to defend his own policy on inheritance tax. The question he has to answer and the issue that concerns the whole country is that inheritance tax cuts for millionaires will cost us nearly £2 billion that we should be spending on public services. The issue for the country is this: is it public services for the many or inheritance tax cuts for the few? I have to say, that with him and Mr. Goldsmith, their inheritance tax policy seems to have been dreamed up on the playing fields of Eton.

Gordon Brown: We are in the happy position of being able to work with the rest of Europe to get a climate change agreement and to work as Europe with the rest of the world to make sure that we can move forward. The talks that are taking place now, including at the Commonwealth conference, are a desire to bring together the richest countries, which will have to contribute to a climate change deal financially as well as with bold and ambitious targets, and the developing countries, which we want to make progress, but which we will have to be able to help. I am pleased that we have agreed-I believe that America and Europe will also agree with the Commonwealth-on a £10 billion start-up fund to help the poorest countries immediately to move on mitigation and adaptation. We have to make sure that the intermediate targets that the major countries will propose are sufficiently ambitious for us not only to meet our target, in 2050, of a 50 per cent. reduction, but to be making big progress through to 2020. Britain will play its part. I know that the European Union will play its part. We look forward to successful negotiations in Copenhagen, and I hope that, despite doubts expressed from some parts of the Opposition, there will be all-party support for that deal.

Anne McIntosh: In July 2007, the Prime Minister promised that no local authority would be out of pocket in recovering from the summer floods. Collectively, they had a shortfall of £50 million. What promise will he give to the people of Cumbria that they will similarly not face a shortfall in the recovery from the floods this year?

Gordon Brown: I understand from the Secretary of State for Environment, Food and Rural Affairs, who is with me on the Front Bench, that 100 per cent. of the clean-up costs were actually made available, but I also understand that the Environment Agency and the local district council have developed proposals for a flood defence scheme in Thirsk and are working up proposals to secure funding for that scheme.
	I have to say that investment in flood management is higher than ever. We saw the benefits of it in Carlisle and in surrounding areas, as a result of flood defence investment, and the grants that we are making to the Environment Agency to tackle flooding have increased from £500 million in 2007 to £659 million in 2010-11. I assure the hon. Lady that her constituency case is being dealt with, but I think that she should see the wider investment that we are making in flood defences.

Chris Ruane: Does the Prime Minister agree that the policy of growing and not cutting our way out of recession is beginning to show results?  [ Interruption . ] Hold on; I have not finished yet. And if we adopted the policy of immediate and savage cuts, advocated by the dynamic duo over there, the economy would be in a right old Eton mess.

Malcolm Bruce: When the Prime Minister goes to Copenhagen next week, will he not recognise that securing a commitment to the £100 billion fund that he is looking for in 2020 will be essential to securing a deal from the developing countries? But at the same time, will he reflect that, given the floods that we have in this country-in Cumbria, in Huntly in my constituency and elsewhere-we need a partnership between the Government and the insurance industry to ensure that we have the means to cope with climate change? Local authorities in the present climate will not be able to do it alone.

Elfyn Llwyd: Given the £100 million raid on Welsh lottery funds and the non-Barnettising of the cost of the Olympics, what can the people of Wales realistically expect for the £427 million that they are paying for the London Olympics?

Vera Baird: I am really grateful to be called an eminent lawyer by one so knowledgeable as the hon. Gentleman, but he is talking about the criminal law, not the civil law, in which burdens of proof shift to fulfil policy obligations. I hope that I have made that clear, but I say again that to ask health-related questions and rely on the information given to not select a disabled candidate will be unlawful.
	Some Opposition Members would have preferred a provision that prohibited health and disability-related inquiries until the point that a job offer was made, but as we have developed the provision, we have had to take account of a range of recruitment processes. There are situations in which the ability to ask health and disability-related questions is essential during the recruitment process. For example, for some jobs with genuine health and fitness requirements, the candidate has to undergo a fitness assessment before a job offer is made. To delay that assessment until the point of the job offer would unduly delay and disrupt established recruitment processes. That is a fairly clear position.
	The new clause strikes the right balance between protecting disabled people from prejudicial discrimination and permitting employers to seek information about health and disability, but only where it is appropriate to do so. It sets out that they will be able to ask health and disability-related questions at the application stage in four specific circumstances, without taking what I will call the "tribunal risk". First, an employer may make inquiries to identify any requirement for reasonable adjustments to the recruitment process. That is essential, as the duty to make such adjustments is fundamental to opening up opportunities for disabled people to gain employment. How can they be made if nobody knows that they are needed?
	Secondly, an employer can make inquiries for the purpose of monitoring diversity in the range of people making job applications. We were told by stakeholders that that monitoring is important to encourage diversity and improve job prospects for disabled people. Thirdly, the new clause provides for inquiries that facilitate the delivery of positive action for disabled people. We all agreed in Committee that that is an important tool in improving work opportunities for disabled people.
	Finally, an employer will be able to make inquiries where there is a genuine occupational requirement for the job on offer to be filled by a disabled person or a person with a particular disability. In such cases, it will be important for the employer to be able to identify candidates with the required disability at an early stage. In addition, the new clause provides for an exception for health-related questions asked for the purpose of national security vetting.
	In other cases, an employer will reduce the risk of a penalty if health-related inquiries are delayed until after the applicant has passed some form of assessment or interview based on non-health criteria. If there is no form of assessment, the employer will be able to make health-related inquiries when they have decided to make a job offer. The aim is to prevent a disabled person from being screened out solely on the basis of their disability without first being given the opportunity to show that they have the skills and competencies for the job on offer. That will address one of the key concerns of disability organisations-that disabled people are being screened out without ever getting to the interview or selection stage. We will do all that we can to ensure that the new provision is well known, so that it can overcome the deterrent effect that health-related inquiries made at the initial application stage can have on disabled people's willingness to apply for work. At the same time, it will promote opportunities for disabled people in the labour market by facilitating positive action and recruitment where there is a genuine occupational requirement.
	The new clause will be an appropriate deterrent to employers using the inquiries in question to gain information for discriminatory purposes, and it will ensure that employment opportunities are promoted, for example though reasonable adjustments. I seek the approval of the House for the new clause.

John Penrose: I thank the Minister for her constructive response and her willingness to provide and publish any evidence and so forth that she and her team have been gathering. I am sure that that will go a long way to reassuring organisations such as the Terrence Higgins Trust and Rethink. The latter
	"expressed its disappointment...following the government's decision not to introduce a clause in the Equality Bill to stop employers asking job applicants about their medical history before deciding whether to invite them for interview."
	It sounds as though those are merely technical differences. I think we are agreed on the principle, which is worth restating briefly for the record. The principle is this: there is a large body of evidence that shows that if employers ask for details of health background before interview or before a job application decision is made, there is more opportunity-let me put it no more strongly than that-for discrimination of various kinds, including, most severely, direct discrimination.
	If we delay that process and say that employers may ask for details of health background only after they have decided to offer someone the job-at that point, the question becomes, "What special and reasonable adjustments may be required by someone who has a disability to allow them to do the job that they have been offered?"-the chance of disability-related discrimination is significantly reduced.
	Having made those points, we welcome the Government's intention and look forward to them publishing the technical background to their work on the matter. We want to keep our powder dry as to whether that means debating the matter again at some later stage, but all being well, we are at least making steady progress in the right direction, and we salute the Government's approach.
	I also wish to speak to two other groups of Conservative proposals which are in my name and that of my hon. Friend the Member for Forest of Dean-one is on positive action and the other on gender pay reporting. Our proposal on positive action seems rather technical and seeks to draw a distinction between someone who is "equally qualified" as opposed to someone who is "as qualified". That is a very small word difference, but it is profound in terms of the thinking behind it and the implications that it might have. The whole point of positive action-and I think that this is widely agreed on both sides of the House-is that it is an important aid to people who would otherwise find it difficult to apply successfully for jobs and positions in all sorts of different professions and sectors of the economy, but which, importantly, stops short of positive discrimination. There is a world of difference between the two and it is an important distinction to make. Positive action, to summarise it in layman's terms, involves providing as much assistance as reasonably possible-holding someone's hand in as many different ways as possible-in all the steps that lead up to and during the interview process for a new position. It deliberately stops short of allowing the employer making the job offer to select someone who is less well qualified simply because they have the protected characteristics in the Bill. In other words, it allows helping someone to prepare and to put themselves across in the best possible way when applying for a job, but the eventual decision on who gets that job must be purely meritocratic and based on the principle of appointing the person best qualified for the job.
	In Committee, there was a debate about that principle. At the start of the process, it appeared that that principle-and the distinction between positive action and positive discrimination-had been bulwarked and preserved by the use of the words "equally qualified". If two people are equally qualified for a job-what we might call a "tiebreak situation"-an employer may choose someone with a protected characteristic, say from a particular racial group or of a particular sexual orientation, in preference to someone who has not such a characteristic. The important point is that the two candidates are equally qualified. That would not, of course, breach the crucial distinction between positive action and positive discrimination. However, in Committee, we had a concerned and detailed debate about the Government's rephrasing of that provision, so that instead of being "equally qualified", it reads "as qualified". That is important because we are worried that "as qualified" might mean that of two candidates who are both adequately qualified-they both clear a minimum threshold as defined by the employer as required for the job in question-the candidate who is best qualified and well above the minimum threshold, but does not have any of the protected characteristics, may not get the job because the employer would be within their rights to give it to someone who is less well qualified but had cleared the hurdle and possessed a protected characteristic. That would breach the important distinction between positive action-giving people a hand in their preparation-and positive discrimination, which is allowing the decision on who is offered a job to be made on any grounds other than merit.
	We are not the only people to be worried about the distinction. The Equality and Human Rights Commission, in its supporting documentation, has also expressed concern. In its Equality Bill report stage briefing, issued on 2 November, it said:
	"Positive action would allow employers choosing between two equally qualified candidates to select the successful candidate on the grounds that they are from an under-represented or disadvantaged group."
	I am interested to note that the EHRC is supporting the principle of "equally qualified" and using that phrase in its briefing document, rather than "as qualified", although I am sure that it is not the only organisation that supports the principle of "equally qualified" and that that support is shared on both sides of the House. The Equality and Diversity Forum, in its briefing on the Report stage of the Bill, says:
	"The proposed provision does not permit recruitment or promotion only because a person has a protected characteristic, it only applies to candidates who are equally qualified and in a situation where a group is under-represented."
	In other words, there is great consensus on the principle of "equally qualified" and applying the clause in a tiebreak situation, but I do not think that there is a consensus on the notion of allowing a candidate who is adequately qualified, but less well qualified than another candidate, to be preferred simply because they are from a minority group. That is our concern.

Katy Clark: Another statistic from the report that the hon. Gentleman has quoted from is that 60 per cent. of women's employment is concentrated in just 10 occupations. Is not one of the issues that many of the jobs that women have traditionally chosen to do, are undervalued? That is why we need to make the Equal Pay Act 1970 work, and also why we need the reporting provisions-and, I would say, other provisions-to strengthen equal pay legislation.

John Penrose: The hon. Lady makes an important point, which is akin to the point about ghettoisation. There might be different functions in a company or even entire sectors in which women have traditionally found it easier to get work. I would suggest that the reason for that will at least partly be the convenient hours that women can get in those sectors and the fact that they might fit more directly with the breakdown of time between child care and family responsibilities and work. However, that does not necessarily make what happens right. That is why I talked earlier about the importance of adequate child care, in order to give women more choices than they have had in the past, although publishing pay reporting figures is not necessarily the answer to that problem. Sorting out child care would be a far faster and, I would suggest, a far more robust response to the problem.
	Gender pay reporting would none the less be worth doing if it were a trifle-something that would be cheap to do-and if we could thereby address the full-time gender pay gap of between 1 and 5 per cent., wiping it out or at least providing the information that would allow it to be wiped out. If gender pay reporting were that cheap, my party would be saying, "Well, this is a sensible and acceptable price to pay." However, the costs are causing me and many others grave concern.
	In the Government's defence, the calculation has risen-I had a bit of a go at the Government about the issue in Committee. The House will be pleased to hear that the calculation has risen-it has nearly doubled, in fact. The Government say that the one-off implementation costs for large companies-those with more than 250 employees, such as Tesco, Shell or O2-have gone up from an estimated £92 per firm to £215.

John Penrose: I am afraid that I am very disappointed with that intervention, because I had hoped to make it clear, from both the tone and the content my remarks so far, that I think it essential that we should continue to make progress in this area. We have more progress to make, as the hon. Lady and I agreed in our earlier exchanges. What I am debating is how to do that and what the most effective way of doing it quickly is. In this case, I am also debating the best way of doing that in a cost-effective way-that is not to say that it is not worth doing anyway, but it has to be cost-effective and done in a proportionate way.
	To return to my earlier point, the one-off implementation costs in the Government's impact assessment have gone up from £92 per company to £215, and the ongoing cost per company has gone up from £15.38 a year to £41. Under the new regime, therefore, Tesco or any other large FTSE 100 company will spend £215 to prepare for gender pay reporting and another £41 to do it annually thereafter. I do not think that I am alone in welcoming the fact that the Government have gone away and increased their numbers, but I fear that they have not increased them by anything like enough. Frankly, those numbers are still not even remotely believable. If we can come up with numbers that are believable and still proportionate, my party will take a very different approach, but we remain concerned and therefore seek the Minister's reassurance.
	Gender pay is clearly important, but it is not the only source of pay differentials according to people's protected characteristics. There are not just gender pay differentials; there are also differentials on the basis of disability and many other protected characteristics. The issue is important, as I have said. However, if it is that important, we should be considering ways to erode those other pay differentials. We are concerned that by taking the sledgehammer to the problem that the Government propose, the wider issues will perhaps be ignored, or at least not given enough priority. I will now bring my remarks to a close. I look forward to the contributions of other hon. Members.

Lynne Featherstone: Let me start by dealing with the pre-employment questionnaires. We on the Liberal Democrat Benches welcome Conservative new clauses 21 and 22, which deal with prohibited pre-employment inquiries. Like new clause 11, they address some of the problems that people have before they even get into work. Whereas most of the Bill is concerned with discrimination in work, those new clauses deal with the barriers in the first place.
	It was interesting to listen to the debate between the Labour and Conservative Front Benchers. I hope that they will reach an accommodation, because they both have right on their sides. The Conservative new clauses would firmly place the onus on employers not to make inquiries about a candidate's disability status. That is the most important point-the question should never be asked, so that there can never be an inhibition on progressing, as opposed to being able to make a complaint only afterwards, whether the candidate has got the job or not.
	On the other hand, the Government's new clause 40 seems to us to impose a slightly narrower restriction. For individuals to demonstrate that they did not get the job because of the pre-employment questions they were asked, there is a higher hurdle, making it more difficult to police and to prevent such inquiries. The merit of the Government's new clause is that there is a sanction and that a clear framework is set out for how an individual should seek a remedy when they have a complaint. That remedy, however, applies only if they did not get the job. The framework is welcome, but the narrowing is not. The Conservative position is nearer to that of the Liberal Democrats. Through this Bill, we are seeking to level the playing field-that is the point-and to give people the fairest chance of getting to interview without being subject to the potential prejudices of the employer.
	That brings me to the Liberal Democrat new clause 11. Much of the Bill, as I said, is about what happens once people have got their job. On the basis of my experience of sitting on employment panels-I am sure other hon. Members have sat on them, too-as a local councillor for eight years in Haringey and for five years as an assembly member at the Greater London authority, together with all the anecdotal experiences and stories one hears, I have long been concerned that job applicants are being discarded at first sift either by the employer or by human resources departments. That prevents them from getting on to the shortlist and from being interviewed.
	I also recall the case in my own office here when two interns, whose surnames were Hussein and Patel, applied for a job. They were far more qualified than me, I have to say, and they told me about the hundreds of job applications they had made without even getting through to an interview. They certainly felt that their names played a part in that discard.
	From subsequent study and from thinking about the possibility of placing this new clause into the Bill, I have become aware of American research on brain patterns. It shows how when it comes to foreign-sounding names, it is the brain-rather than racism per se-that recognises and accepts what is familiar but subliminally and unconsciously discards what is alien or foreign. If someone is being interviewed by a racist, this is obviously not going to make a difference, but to be discarded, as my two interns were and as many others have been, simply because the brain works in a particular way seems to be a matter that we could and should look into.
	When children are being examined, we give them a number so that they can write it on the paper and avoid any inherent bias. The proposition is that people applying for a job could use something like a national insurance number so that they could avoid being knocked out at first sift. That will not solve all the problems all the time, but it is an entry-level requirement. When one comes to interview, all is then revealed.
	On Second Reading, I floated the thesis and, undeterred, tabled an amendment in Committee, and it was interesting when the Solicitor-General told the Committee that the Department for Work and Pensions was undertaking some survey work. At that point, she said that although she did not wish to tantalise the Committee, the first showings suggested significant discrimination. I was quite excited by that, as it identifies a real problem; whether or not this new clause is the solution is a matter for discussion. If there is a big problem, however, the use of anonymous CVs will be simple, effective and cheap-resource non-intensive, which should please Conservative Members, because it does not cost anything and does not involve a cost to business.
	Many benefits would flow from removing discrimination in the job market-opening up opportunities, spreading wealth, bringing about greater social cohesion and economic efficiency, from which we all benefit.  The Mail on Sunday obviously got the wrong end of the stick about what the Government were doing when it said that the City was very upset. Excuse me, but undertaking research into an issue to establish whether a change in the law is required sounds pretty sensible to me and I commend the Government and the Department for Work and Pensions for undertaking it, especially when it is on such an important issue as discrimination in employment practices. A smart employer would also know that the depth of scientific research backs up what the new clause is designed to achieve.
	I am very encouraged that this research has been carried out and I very much hope that the Solicitor-General will elaborate on the findings, which I understand showed clear discrimination based on name alone. People say "What's in a name?" and I think the answer is "Quite a lot". I greatly hope that the Government will support new clause 11. I will listen carefully to the Solicitor-General before I decide whether to test the will of the House, as she may wish to say more and propose that more work needs to be done.
	On the gender pay gap, which I believe is an extremely important issue, I do not think that there is a million miles between the Government and the Liberal Democrats other than about the degree to which we wish to see change and perhaps over the Government's belief that another four years of voluntary disclosure will work. The Liberal Democrats do not believe that it will. I was concerned and upset again, as I was in Committee, to hear the hon. Member for Weston-super-Mare (John Penrose) arguing in a way that suggested he wanted to minimise the effect of what we are seeking to do by closing the gender pay gap. Good Lord-  [Interruption.] The hon. Gentleman shakes his head, but the whole manner in which he put the case seemed to suggest that he was saying, "Well, basically women have children, so we kind of have to understand that that puts them outside the workplace."  [Interruption.] That is what it felt like as I sat listening to the hon. Gentleman, and these are arguments that women have heard for many decades. What he said seemed to have those echoes and tones.

John Penrose: That was emphatically not what I was saying and it was not the intention of my remarks or the impression that I wanted to convey. What I was trying to say was that this is a crucial and pernicious problem that has persisted for a long time, albeit improving at a very slow rate, so that we needed to target what we do about it appropriately. Different parts of the gender pay gap, which are caused by different things, require different public policy responses. My argument was that this particular public policy response is a comparatively expensive way of focusing on a very small part of the problem when we would do better to focus on all the other bits, which would reduce the gap much faster.

Lynne Featherstone: Then of course I am equally concerned. I am concerned about all discrimination. However, those are not the statistics that I have.
	The problem is that a law that was intended, in the best possible way, to change women's prospects for ever has not been effective. It is extraordinary to note that that is the case at both ends of the market. The Equality and Human Rights Commission has done a great deal of work in studying the pay gap in the financial sector. Admittedly, those in that sector probably receive far less sympathy from Members than those in the low-paid sector.
	Last year, the highest-paid female director of a company in the FTSE 100 took home £3.8 million. That figure, however, is dwarfed by the amount received by the highest-paid man, who took home a disgusting-if the House will excuse the word-£36.8 million, almost 10 times as much. Lest Members are in any doubt, I should make clear that I think such pay levels are insane, but the point is that from the highest earners to the lowest, women get a raw deal. It is as tragic as it is shameful that such gaps remain nearly 40 years after the passing of the Equal Pay Act.
	Apart from the fact that the Government's proposals for voluntary publication applied to firms with more than 250 employees, what was made clear in Committee was that they were working with the CBI, the trade unions and the Equality and Human Rights Commission to establish a single figure, or a small number of figures, according to which it could be judged from year to year whether a firm was making progress in reducing a gender pay gap. I do not know the magic number, or metric, that they agreed to adopt. I had hoped to have that information before the debate, but I do not have it, so I hope that the Solicitor-General will be able to tell us more. In any event, however, if it has been decided that that is how to monitor companies' progress in closing the pay gap, I consider the decision misguided, because it will not deliver real change.
	I can see the attraction, in terms of monitoring, of establishing a single figure or small number of figures according to which a company could be judged from year to year. The magic figure, or figures, might help the Equality and Human Rights Commission, if that is the body that will have to judge whether a company is closing the gap, but it will not do what the Liberal Democrats consider to be one of the most important things that disclosure can do. It will not put power into the hands of individuals by enabling them to discover whether they are being discriminated against.
	If the company for which a person works publishes its pay scales, the result-apart from public opprobrium-will be that that individual can establish whether he or she is being subjected to discrimination, and can then take his or her case to a tribunal. Someone who does not know whether he or she is being discriminated against will not have that power. Unfortunately, although the Government's proposed measure will help by allowing the monitoring commission to check on the overall pattern, it will not empower the individual.
	As was pointed out by the hon. Member for North Ayrshire and Arran, an important aspect of mandatory pay auditing is that it puts a value on the different kinds of job held by men and women. Rather than proposing a measure that is good but not good enough, my colleagues and I are suggesting that firms that are reasonably sized or larger-100 employees seems an appropriate cut-off point-should be subject to mandatory auditing so that women, and indeed men, can see for themselves whether they are being discriminated against, and can make a claim if necessary. We as Members of Parliament should understand the power of transparency when it comes to publication. It has a very salutary effect.
	New clause 4 concerns representative actions. Currently, if I believed that I was being discriminated against in terms of pay, I could take my claim to an employment tribunal. As I have already said, the ability to see for themselves whether they are being discriminated against will put power into individuals' hands. However, an individual has to be quite brave and assertive to proceed with a claim, and the resources for tribunals are so inadequate that there is currently a backlog of cases. Women are waiting and waiting and waiting. According to evidence provided by the Fawcett Society, thousands of women are waiting for justice, and some have died while waiting.
	The aim of representative action is to speed up justice, to take the pressure off individuals, and to protect the system from breakdown and expense. Individuals could be represented by trade unions or, indeed, by the Equality and Human Rights Commission, which ought to be able to act on behalf of a group of people who find themselves in roughly the same position and bringing the same kind of action.

Philip Davies: I admire the sense of humour that the hon. Lady has shown in asking the Equality and Human Rights to take up cases of this kind. The commission itself pays men more than women, white people more than members of ethic minorities and non-disabled people more than disabled people, and its performance this year in respect of the last two categories has been worse than its performance last year. Is it not ludicrous that an organisation that cannot even do things properly itself should take up such cases-or does the hon. Lady expect it to take up cases against itself?

Lynne Featherstone: We would do that in the same way as we would do it for any other purpose; we would evaluate it, audit it and make an assumption about it. The hypothetical question would be: what if a man were to do this job?
	New clause 6 addresses defence of the material factor. Although it is important, I shall discuss it only very briefly, as it is about a legal and highly technical point on which we do not seek to divide the House. The new clause would prevent an employer from using a spurious reason to justify discrimination and thereby avoid the obligations under the Bill.
	Finally, I wish to point out that we will be supporting a few new clauses and amendments tabled by Labour Back Benchers, such as that on mariners. We think that abolishing the exemption in respect of the minimum wage is particularly important. We wish to show our support for that. We cannot understand how discriminating by having two different levels of minimum wage can be right. Why will the Bill not change that? We will support that Labour Back-Bench amendment.  [Interruption.] The hon. Member for Shipley (Philip Davies) asks from the Tory Back Benches whether we will support any of his amendments; I have to tell him that we will not.

John McDonnell: The worst thing that can happen is that we enact this legislation without making it effective and then rely on too many informal arrangements that allow the untrained barrack room lawyers to become involved, which in turn places a burden not only on the other members of the work force, but on the company or the agency employing the members of staff. That is why we must put all this on a professional and statutory footing. The recognition of equality reps should, thus, not be a contentious matter. As I said before, this has been done in other areas of employment legislation, and I hope that the Government will accept this new clause.
	Secondly, I wish to dwell for a short while on new clause 25, relating to the minimum wage for seafarers, tabled by my hon. Friend the Member for Dover (Gwyn Prosser); I hope that he will permit me to do so. He will speak more eloquently than I, but I wish to discuss this matter because it has become a personal crusade for a number of Members over the years. It is eight years since I first raised it in the House and I was hoping that today would be the day when we would resolve it once and for all.
	I chair the National Union of Rail, Maritime and Transport Workers parliamentary group, of which my hon. Friend is a member, as is my hon. Friend the Member for North Ayrshire and Arran (Ms Clark)-she, too, has taken up this issue. I wish to pay tribute to the RMT, which has valiantly pursued this campaign over the years. I shall name the officers involved because I want them to receive recognition for standing up for some of the most vulnerable workers in our work force. Thus I pay tribute to the RMT general secretary, Bob Crow, and to Steve Yandell, Steve Todd, James Croy and Malcolm Dunning, all of whom have worked alongside hon. Members from all parts of the House to try to get this matter resolved, and have given advice to the Government on how that should be done.
	This process started as a result of an exposé of the low rates of pay of certain workers on British-flagged ships. A number of years ago we emphasised those rates of pay, particularly those of Filipino workers, but I must say to hon. Members that this still goes on; it has not gone away. The rates of pay for Filipino able seamen on P&O ferries between Liverpool and Dublin-we are not talking about seafarers who are crossing the world, but about seafarers operating on ferries close to us. A Filipino on the Norbay receives £313 a month and a Filipino on the Norbank receives £328 a month. Given that the UK minimum wage is about £1,000, those are poverty wages for people working less than 200 miles away from here, on a UK-flagged ship.
	Nearly eight years ago we made proposals in negotiation in which we sought to ensure that at least those people would be paid the minimum wage. We took the matter to the Deregulation and Regulatory Reform Committee-I was allowed to speak, even though I was not a member-and we were given the assurance that they would be paid a minimum wage within British waters. We came back to this House and celebrated a success, only to be told by the Government that this would apply not to "territorial waters", but to "internal waters": that means a boat that is moored, because the term has extremely limited coverage. I used to tell jokes about the Norfolk broads, where I sail, but this is no longer a jocular matter; it is a serious matter because it has gone on for so long.
	We then went back into negotiations with the Government to discuss how we could overcome this situation. We were told that the reason why the Government could not move beyond that position was because of various international laws, so we took our own legal advice. We supplied the Government with that advice-on two occasions they were supplied with separate forms of advice-in which it had been confirmed to us that it is extremely doubtful whether their hand is restricted in this way by international laws of the sea. Our latest advice, from Mr. Jonathan Chambers of Quadrant Chambers, clearly states:
	"In my view, the proposed amendment"-
	the proposal we made previously-
	-"probably does not interfere with the right of innocent passage protected under section 3 of UNCLOS".
	As of yesterday, the Government remain of the view that their legal opinion says that we cannot implement the minimum wage in our territorial waters because of this "interference" with "innocent passage". Even if we cannot resolve this today-if the Government cannot accept the new clause tabled by my hon. Friend the Member for Dover-I must say to them that there must be a way through this. So far they have not been willing or able to share their legal opinion with us. Can we at least share the legal opinions upon which the Government are basing their decision? Perhaps we should hold a seminar-I make this offer-where we get the lawyers together with Ministers and Members of Parliament who are interested in this subject to try to resolve it. I am sure that nobody in this House would want to support a situation whereby people are paid this minimal level of income, on which it is basically impossible to survive. This is poverty pay within the UK jurisdiction.
	My hon. Friend the Member for North Ayrshire and Arran has tabled new clause 33 on pay audits, which I wholeheartedly support, and I shall leave it to her to discuss it. As for the difference between the numbers, we simply felt that the numbers would reflect the Government's own attitude on other employment legislation, so we chose 21. Even if we could get the Government to agree to the proposal today, large numbers or workers would still not be included in the overall scheme.

John McDonnell: That is extremely helpful.
	I shall now discuss amendment 33, which stands in my name. Ministers have worked extremely hard on this legislation to try to attack harassment. I welcome the part of the Bill that seeks to outlaw harassment at work and tries to place duties on employers to ensure that they deal with the matter. Under the Government's current proposals, clause 38(2) provides that an employer will be liable for harassment by a third party if the third party harasses the worker in the course of their employment-that is excellent-and the employer
	"failed to take such steps as would have been reasonably practicable to prevent the third party from doing so."
	Again, that is superb. Then, in my view, it undermines the real protection that could be given to employees, because it says that a worker must be
	"harassed...on at least two other occasions"
	before the employer has a duty to act.
	That flies in the face of the spirit of the legislation and, I believe, of what the Government originally intended. It means that an employer will be able to send someone out on more than one occasion to a vulnerable situation in which they will be harassed. It flies in the face of the original judgment, if Members can remember, in the Bernard Manning case, where black members of staff were subjected to racial abuse from that comedian when they were placed in such a vulnerable position by their employer.
	My amendment seeks to ensure that it does not have to take at least two other occasions before an employer's duty comes into play. The employer should have that duty on all occasions and in that way vulnerable workers will be better protected. The employer will still have a responsibility placed on them, but if they fail to take such steps as would reasonably have been practicable to prevent the third party from behaving in such a way, the legislation would cover them. They would still be protected. They would have to behave reasonably and, of course, if they could not predict that a person would be abused it is not unreasonable that they should not be covered by this clause. To send someone out on a number of occasions on which they are abused, in my view, flies in the face of what the Government originally intended in terms of the responsibilities placed on the employers.
	May I discuss amendment 34, tabled by my hon. Friend the Member for Dover, who will also go into it at some length? We have worked so hard on this together, so I want to try to get some clarity about where we are going in terms of the Government's proposals. I would welcome any interventions from Ministers to clarify the process by which they envisage that this next stage will be implemented.
	Let me give the background to the amendment. We have worked on this over the past decade, and some hon. Members will remember the debate that we had on the subject more recently. When the Race Relations Act 1968 was implemented 40 years ago, shipping was exempt. We were in a disgraceful position. Discrimination, although it was outlawed on land, could take place on ships. If people did not like the ethnicity of another passenger, they could legitimately refuse under those exemptions to share a cabin. Discrimination took place across the work force.
	In 1976, the Government tried to tackle some of those aspects of discrimination in reviewed legislation, but they still left employers' ability to discriminate against seafarers, particularly on wages. As I mentioned earlier, Filipinos are working on poverty wages because of that ability to discriminate. As a result of EU demands for compliance with EC law, the Bill seeks to outlaw all discrimination as regards seafarers and shipping. It also gives the Minister the power to designate who is included within the ambit of outlawing discrimination against seafarers. We sought to ask the Government to publish the regulations by which the Minister will determine the aspects of discrimination against seafarers that will be outlawed.
	I am grateful to the Under-Secretary of State for Transport, the hon. Member for Gillingham (Paul Clark), because he provided us with a letter on 30 November, which was also laid before the House via the Vote Office and the House of Commons Library and which followed up on a letter of 3 August. He enclosed a copy of the draft regulations, which set out the detail, as I understand it, of those seafarers who will be included in the ambit of the legislation. As far as I can see, it includes seafarers from the EC or the EEA-the list of countries has been circulated in earlier discussions-and ensures that there is a definition of an employment relationship with this country, so that we have some clarity and certainty for those seafarers who will be included in the legislation to outlaw discrimination.
	Let me place on the record what the letter says. It says that the employment provisions of the Bill would apply
	"to every seafarer on a UK ship with a port of choice in Great Britain, so long as the seafarer either works at least partly in Great Britain, or is a UK or other EEA national (or has corresponding EC law rights) and has an employment relationship sufficiently linked to Great Britain."-[ Official Report, 30 November 2009; Vol. 501, c. 115WS.]
	I would be extremely pleased if we could get some clarity about what
	"an employment relationship sufficiently linked to Great Britain"
	is at some stage. It adds to the confusion about the ambit of the regulations.
	The Government have written to the various stakeholders to say that there will be a further consultation on the issue of pay, requesting evidence from industry representatives and the trade unions and evidence-based financial estimates of the likely impact of either outlawing differential pay rates altogether or continuing to allow the payment of differential rates to seafarers, but only where such differential rates would not operate to the disadvantage of nationals of EC or EEA states or to that of seafarers recruited in Great Britain.
	That consultation will now take place. We had a consultation, which lasted six months, in 2007. My understanding is that if the Government are convinced that there are evidence-based financial estimates that demonstrate that there should be some continuation of differential pay rates, the regulations will be subject to affirmative resolution after the Bill is enacted. That means, in fact, that if the Bill is enacted on 1 April, for example, and implemented next October, the regulations will be honed down during that period and only then will they come into force. That is almost a year in which people will be subjected to discriminatory pay rates.
	May I suggest to the Government that the simplest way of doing this would be for the consultation that is taking place, which Ministers have suggested will be short and sharp, to end early in the new year and for the decisions on the regulations to be made fairly swiftly? Rather than awaiting the enactment of the legislation and the publication of the amendments, the regulations could be enacted through the Bill. When the Bill gained Royal Assent on 1 April, so would the conditions and the import of the regulations. In that way, we could tackle discriminatory pay among some of the poorest workers immediately. That would send out a message about the Government's determination to seek equality in this field, where we have had such inequality for such a long time.
	I await the Minister's response on all this and the advice of my hon. Friend the Member for Dover about which issues he will press to a vote. This is such a fundamental issue of principle that I hope we will see some Government movement. I am sure other hon. Members will wish to see that, too.
	May I now discuss amendment 24, which I have tabled? It has been raised in the discussions already and is a further amendment on the subject of the minimum wage. I cannot remember on how many occasions I have tried this-it becomes like a hardy perennial. My intention is to try to remove the discrimination against young people in the minimum wage legislation.
	I come from a basic trade union background, and I believe that someone should be paid the rate for their job. That rate should be based on the work that they do and the value that they add to the company's work-and therefore their assistance towards its overall profit and future sustainability. A person who is making that contribution should be paid the rate for the job, no matter what age they are. This amendment would remove the ability to discriminate on the basis of age. If there are arguments to be made about the deterrent effect that such a change would have on the employment of young people, we need to see the evidence behind them because it has never been produced. We have never had any quantitative estimation of how many young people would be disbarred from employment as a result of being paid the rate for the job. The argument is the same as the one we had about the basic principle of having a minimum wage. We were told that it would cost jobs and would undermine the profitability of companies, but that has not happened.  [ Interruption. ] I am happy to give way if the hon. Member for East Antrim (Sammy Wilson) wants to say something.
	This issue concerns basic principles of justice and equality, and I urge the Government, even at this late stage, to give some indication that, even if they cannot address it in this Bill, we will at least have a proper review about age discrimination against young people. I want to get a real debate going and get some real information about this issue, because it has not been considered satisfactorily by the Low Pay Commission and others, and it has become almost a given. I shall not press the amendment today because it looks as though we will be allowed only a few votes, given the way that time has gone on in this debate, but I say to the Government that I am not going to give up on this, and neither will other Members of the House. We will come back to it again and again until we have tackled this discrimination against young people.

John Mason: Does the hon. Gentleman accept that the evidence, historically, is that what he says is not the case? Before the minimum wage came in, employers were paying, in my memory, ridiculous amounts such as £1 an hour to security workers. The gap between those at the bottom and those at the top is getting wider, so he must surely accept that there is no evidence for his argument.

Rob Marris: As the successor to Enoch Powell as Member of Parliament for Wolverhampton, South-West, Is the hon. Gentleman really content that new clause 36 would mean that a company with 249 employees would be permitted to discriminate racially against those employees? That would be the effect of the new clause, and I find it outrageous.

Sammy Wilson: The hon. Gentleman will know that positive discrimination of the sort that he proposes has been exercised-and on a huge scale-in Northern Ireland, where there is 50:50 recruitment into the police force. His proposal would safeguard people from discrimination, but sometimes people who get jobs feel that they have got them not on merit but because of positive discrimination. Does he agree that his new clause would protect them from that? Indeed, many Catholic recruits to the Police Service of Northern Ireland have said that they would rather have been chosen purely on merit and not as a result of positive discrimination based on law.

Philip Davies: I do not agree my hon. Friend, which is a rare thing for me to say, because nothing in my new clause would stop anyone wanting to do those things if they so wished and if that helped them to recruit the best person for the job on merit. My new clause would encourage someone to go to those lengths, to recruit the best person for the job-that is certainly its purpose-and I am very surprised that any hon. Member is opposed to giving people jobs on merit, but that is a reflection of the way that political correctness has taken over the House, as well as many other parts of the country.
	I will move on to some of the other amendments, and I will try to spend a bit less time on some of them. My amendments 60 to 64 cover the ground about work of equal value and touch upon where the Solicitor-General started the debate about favouring minority groups when two people of equal ability apply for a job. My amendments would remove the provisions that allow for that. For me, this is absolute fantasy world. It is all very good in an academic university lecture theatre to talk about what will happen when two identical people apply for a job and about two people who do jobs of equal value, but I ask hon. Members where on earth those situations ever exist in the real world. I have recruited many people in my time. I have never yet even remotely come across a case where two people have exactly the same ability and are exactly the same. Unless the Government envisage lots of twins applying for the same jobs right across the country, this is a completely meaningless, pointless and academic argument.  [ Interruption. ] Does the hon. and learned Lady want to have a bash, or is she just chuntering?

John Mason: I thank the hon. Gentleman for giving way again, and I am happy to meet him in the Tea Room to talk about any of these issues. Does he accept that, in fact, such cases do not always involve two people who are equal and one of them is preferred to the other, but a woman, or perhaps a disabled person, who is better qualified and better able than the white male, or whoever, not getting the job? If we look at society, we see that there is clear discrimination, and we need to do something about it.

Philip Davies: The hon. Lady introduces into the debate the fact that what is best is a subjective matter. It therefore seems even more pointless to try to pass all these things to a tribunal and a court for a decision, because they are obviously subjective. Who is to say that her view is more relevant than someone else's or that the tribunal chairman's view is more relevant than the employer's. They are, by definition, subjective. So rather than my agreeing with her, she appears to be agreeing with me.
	Amendments 65, 66 and 67 deal with an interesting part of the Bill. In effect, the Government are saying on this equal jobs thing that, if A can demonstrate that they are being treated less favourably than B, the terms for A must be changed to match B's terms. It is an interesting theory that, in effect, everything must be equalised upwards. If the Government and Labour Members are absolutely committed to equality, they should not care whether the terms are equalised upwards or downwards, so long as they are equal. So why on earth is it necessary to equalise upwards? Why will the Government not allow the terms to be equalised downwards? If we are talking about an equality Bill, that should be neither one thing nor the other to the Government.
	Some recent disputes with local authorities provide some evidence of why such an equalising measure is not in the Bill. Leeds council is a prime example, where the binmen have been on strike over pay for about 11 or 12 weeks. The reason why everyone is up in arms in certain local authorities-Sheffield is another one that suffered from this-is that, because of the single status thing, everyone in jobs with a predominance of certain genders had to be paid equally. That ended up with lots of people being paid less, so they all went on strike.
	It strikes me that, out there in the country, there is no great demand for equality; people just want to have their terms and conditions protected. I want the Government to have the courage of their convictions. If they believe that equality is the be-all and end-all of any legislation, let them put it in the Bill that people's conditions can be equalised downwards as well as upwards. I suspect that their commitment to equality will probably not go that far.
	I will rush through amendments 68 to 70, because they are minor matters. Amendment 68 would leave out clause 66(3), which states that
	"the long-term objective of reducing inequality between men's and women's terms of work is always to be regarded as a legitimate aim."
	I do not see that as something that should always be regarded as a legitimate aim, because it might inadvertently allow another practice to take place that people might find unacceptable. I do not necessarily see that as a legitimate aim, and I do not think the hon. Member for Hornsey and Wood Green (Lynne Featherstone) does either, if she is honest about it. She did not accept that for part-time work, women are paid a higher hourly rate than men, but that is the case, as shown by figures from the Office for National Statistics.
	I know that the Government fiddle the figures from the Office for National Statistics and get into terrible trouble for so doing, but the facts are that the average pay for a woman part-time worker is £7.51 per hour and the corresponding average pay for a man is £7.26. I do not think that that is illegitimate, and there may be all sorts of reasons for it. A high proportion of the women who tend to do part-time work may have had a career beforehand and choose, because they have had a family or it suits their circumstances best, to go into work in which they have a lot of experience and expertise behind them. The men who tend to do part-time work are much younger-people who leave university or school and therefore have less experience. It is inevitable that part-time women workers will be paid more, on average, than part-time men workers. I do not see that as a bad thing. It reflects what the real world is like out there. We do not need clauses to stop that practice. That is wholly unnecessary.
	Amendment 69 deals with maternity pay and the requirement that women's pay when they return to work should be what it would have been if they had not been away at all. How on earth can anybody know what somebody would have been paid if they had not taken nine months or a year off? They might have got a promotion, if they had been there to apply for it. That is totally unenforceable, and I am not sure that it is particularly desirable.
	Amendment 70 relates to the discussions on pay among employees. The Bill would oblige employers to disclose what other people were paid. I do not know how many hon. Members in the Chamber have worked in big companies, or in small companies, for that matter. I can think of nothing more likely to cause friction in the workplace than everybody telling each other how much they are paid. People may be paid differently for all sorts of reasons. It may be nothing to do with their race, gender, sexuality or whatever. There may be other reasons why people are paid more or less. All I can say to the Government is that if they introduce that clause, there will be more fighting going on in workplaces around the country than we have ever seen, and the number of days on strike will probably go up massively.
	Clause 75 deals with the gender pay gap. As I said, I do not see it as a problem that part-time women workers are paid, on average, more than their male counterparts. I do not see why Members see that as a problem and I look forward to hearing from the Minister why she is wholly opposed to part-time women workers earning, on average, more than part-time men workers.
	The question arises whether it will be possible to implement these measures. The Equality and Human Rights Commission exists to lecture everybody else, as the Minister said, and if she has her way, to take recalcitrant employers to court over the gender pay gap and other such matters. I shall be charitable. I do not think the Equality and Human Rights Commission is a particularly nasty body, or that it sets out to discriminate against ethnic minorities, women or disabled people. Perhaps it does. If someone holds that view, let them stand up and explain why they believe that.
	However, even the Equality and Human Rights Commission pays its male staff, on average, more than its female staff. It pays its white employees more than their ethnic minority colleagues, and its non-disabled staff more than its staff with disabilities. If even the EHRC cannot meet the Government's aims, how can they expect it to go round the country lecturing everybody else on how to do it? It is utter nonsense.

Gwyn Prosser: I shall speak to new clause 25 and amendment 34 in my name. Both are proposed changes that seek to remove the terrible discrimination against non-UK seamen sailing on British ships between British ports.
	New clause 25 would apply the national minimum wage to seafarers who are either ordinarily resident in the UK and sailing on British-registered ships, or sailing on ships that trade solely between UK ports or offshore installations-a very narrow definition. It could be argued-indeed, it has been in this House and in the other place-that the minimum wage should apply to all seafarers on all UK vessels when they are trading in UK territorial waters. That seems to me, to the National Union of Rail, Maritime and Transport Workers, to Nautilus International, of which I am still a member, and to the TUC to be a very reasonable way of removing the inequalities in current legislation and putting an end to the shameful exploitation of non-UK seafarers on British ships.
	Unfortunately, Ministers in both Houses have resisted such reform for a series of reasons. Although I and supporters of the reform do not consider those reasons to be valid, we have none the less taken heed of them and narrowed our new clause substantially. New clause 25 is therefore very narrowly scripted as a means of making some progress, because under current law some ship operators are getting away with murder. We have evidence of pay rates, conditions of service and hours of duty that have been described as "modern-day slavery".
	There are countless examples of poverty pay on British ships trading between British ports. My hon. Friend the Member for Hayes and Harlington (John McDonnell) gave two examples, but there are many more. For instance, Streamline, operating from Aberdeen to Lerwick, pays just £314 a month-one third of the national minimum wage equivalent; Varun shipping company, which sails out of Aberdeen and from Peterhead to the offshore oil industry, pays workers as little as £262 a month. Some Filipino seamen are paid just over £2 an hour; Estonian able seamen-qualified able seamen-on the regular Heysham to Belfast service are on just £433 a month; and the list goes on. It is not restricted to a couple of examples; it is wide-ranging and getting worse. Sadly, there are many other shameful examples, and that cannot be right, which is why the unions have been pressing for reform for so long.
	The remaining arguments against extending the national minimum wage in the circumstances described in new clause 25 are becoming fewer and entirely predictable. The Chamber of Shipping argues that some operators might flag out of the British flag, but that is the sort of blackmail that big business and employers adopted during the introduction of the minimum wage in the first place. Whenever workers' rights are improved, big business, the CBI and the official Opposition come forward with all sorts of nightmare scenarios for a particular case. We know from the national minimum wage negotiations, and from the fact that we are now 10 years on from them, that none of those dire predictions came true; in fact, most changes went in the opposite direction to those that were forecast.

John McDonnell: Will my hon. Friend remind the House that when the Government became the Administration in 1997, we introduced the tonnage tax to support such companies? Between £80 million to £100 million has been given to them in total, and the quid pro quo was that they would promote British seafaring employment, but that has not occurred.

Katy Clark: First, I want to put on record my support for the Bill, which is a landmark piece of legislation that will help hundreds of thousands of people in the years to come.
	I want to speak to new clause 33, which I have tabled and would like to put to the vote at the appropriate time. I noted the comments of the hon. Member for Hornsey and Wood Green (Lynne Featherstone). It is important that this House debates and divides on the issue of mandatory pay audits, and I believe that my new clause would be the appropriate one to vote on given that it proposes a lower threshold of 21 employees in the workplace. I will come to that a later stage in my speech, which I will try to keep relatively brief given the time constraints on the House.
	The Equal Pay Act 1970 came into effect in 1975. There has been considerable movement in relation to men's and women's pay since then, but it has been very slow and it has been a struggle. As a result of the equal pay legislation, thousands of women have gone to employment tribunals with equal value and equal pay cases. Those cases have been very difficult to take forward; in many cases, it has taken many years. I was involved in a piece of mass litigation on equal value in the national health service that took eight years, and I know of a case involving women speech therapists-a landmark case-that took 13 years to resolve. At the end of those lengthy periods, the women concerned did not get the full value of compensation that they would have achieved had they won at the employment tribunal. Because they knew that they were going to have to wait for many more years before they got to that stage of the proceedings, they decided to take a proportion of the compensation that they would have been successful in obtaining had the case gone through the whole process. Too many of those involved had retired or died, or their circumstances had otherwise changed, and they took the view that they had to take compensation at that stage instead of pursuing the matter to the bitter end.
	Equal pay and equal value cases take such a huge amount of time because of the difficulty of taking them through the tribunal and the wide range of technical defences that are available to employers. Cases of this nature place a huge burden on the women who bring them; being the focus of such a case is a very pressurised experience. I therefore support new clause 4 on representative actions. We need to look at the ways that other countries have dealt with these problems. It is clear that taking class actions, or representative actions, is a way of ensuring not only that the onus is not on one individual at the tribunal but that more people benefit when they win.
	I also support the amendment on hypothetical comparators. That factor applies in many other countries and there have been many employment tribunal decisions about it. I think that it is already lawful in this country, but putting it on to a statutory footing would help to underpin it.

Katy Clark: Indeed, and I understand that regulations were published today on that issue. I have not had the opportunity to examine them, but I understand that the 3,000 people involved will not really get any justice or compensation for the discrimination against them. We know from our history that those who stand up, take action and fight are victimised. That is why many of us have fought for many years to bring in anti-victimisation legislation-so that people can take up such cases. I agree with my hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott) that class actions are one of the most effective ways to do that.
	We still have a huge problem with equal pay in this country. We have had a quite a bit of banter about statistics, but it is clear that since 1975, when the 1970 Act came into effect, the trend has been in the right direction in the sense that the gap between men's and women's earnings has narrowed. That has not been a constant trend, and there have been years when it has increased. In the last year for which we have statistics, 2008-09, the gap got smaller, but in the year before that it widened.
	We have heard a lot about the figures, and we know that the pay gap for full-time employees is somewhere between 12 per cent. and 13 per cent. For all employees it is more like 22 per cent. As has been pointed out, different information becomes clear depending on how we look at the statistics. Far more women work part-time, including those who are well qualified and had well-paid employment before having children and then deciding to go back to work on a part-time basis. It is clear from the extensive research that such women are paid a lower hourly rate than men undertaking similar work of like value. There is huge discrimination against part-time workers, particularly women.
	It is also clear from the work that has been done that there are huge regional variations in discrimination against women and in the gender gap. The Fawcett Society has shown that the gender gap is 53 per cent. in west Somerset and 49 per cent. in Windsor and Maidenhead, but in Sevenoaks and Kent it is 1 per cent. Similarly, when we look at some employers, we find that women are paid more than men on average because of the types of jobs that are done. One can do all sorts of things with statistics, but the general picture that there is still discrimination against women cannot be argued against.
	One of my concerns is our failure to make such speedy progress as comparable countries. The international comparisons show that Britain is moving down the scale and our situation is getting worse. Of the 130 countries that are part of the World Economic Forum's global gender gap index, Britain was ninth in 2006. Last year we had fallen to 13th, and now we are ranked 15th, so it is clear that other countries are addressing the problem better. We must examine what they are doing and consider how they are achieving that. I agree with my hon. Friends that representative and class actions are part of that, but so are mandatory equal pay audits. What has happened in other countries makes it clear that that form of transparency works. In Sweden, where such audits were introduced in 1991, the pay gap is now only 3 per cent., and they have also worked in other countries where similar action has been taken. It is shameful that the business lobby has succeeded in persuading the Government not to take a mandatory approach.

Katy Clark: Yes, that is a massive problem for local government and throughout the national health service and all parts of the public sector. As I said, at least there has been an attempt to grapple with the problems since 1997, with all their complexities and difficulties. Unfortunately, that cannot be said to the same extent of the private sector, in which about 80 per cent. of employees work. Gender discrimination is an even more difficult problem in that sector, and it is even more difficult to bring equal value cases because of the lack of transparency.
	When I took equal value cases in the health service, we knew what a cleaner was paid, and we also knew what the wall washer, who was a man, was being paid. He was paid more, even though he was washing the wall and the women were washing the floor. We were therefore able to put a case together. That is not the situation in the private sector, because there is no transparency and different people doing the same job are on very different terms and conditions of employment. That makes it even more difficult to achieve any kind of equality, because people do not know what is going on round about them. They get information accidentally and anecdotally, and it may or may not be correct. They could therefore be well into an equal value case before they knew what the ball game is and what they were being paid in comparison with others.
	I welcome clause 75, which opens the way for a more mandatory approach in that it gives Ministers a power to make regulations to require employers with 250 or more employees to publish information. However, a voluntary approach has not worked over the past 40 years, so I find it difficult to believe that there is going to be significant movement in the next four years, in which time the Government say they hope there will be an improvement in the situation. They have said that they do not intend to use the power until 2013, and I hope they will revisit that mandatory aspect.
	The figure of 250 employees will simply exclude considerable numbers of people who could benefit from the Bill, so I welcome proposed new clause 3, which was tabled a considerable time ago by the Liberal Democrats. It would be a significant improvement, but my concern is that it would still exclude many people who could be helped by this legislation. As I understand it, the measure was drafted in line with the equal pay task force recommendations, which were published in 2001. That authoritative report, which was commissioned by the Equal Opportunities Commission, has already been quoted in our debate.
	The reality, however, is that even if new clause 33, which would introduce a threshold of 21 employees, were successful, 32 per cent. of women would be excluded, because they are employed in organisations with 20 or fewer employees. Only 68 per cent. of women and a slightly higher number of men would be in organisations that had to make such information available.
	The figure of 21 employees was chosen simply because it fits in with the Government's approach to other legislation, such as trade union recognition, and not for any other reason. There is a very strong argument that there should be no threshold at all, because this form of transparency is easier the smaller the organisation. However, we took the view that some people would feel able to support a threshold in the region of 21, but would not support no threshold whatever.
	I believe that mandatory pay auditing legislation would help significant numbers of men and women in this country-of course, not only women take equal pay cases, but men too, and they do so successfully. However, the vast majority of people who are discriminated against in their pay on the ground of gender tend to be women, so women will be the major benefactors of successful legislation.
	This is an important issue for our party in Government, and I very much hope that the Government will feel able to look at it again. They will be very well aware that many Labour MPs are very sympathetic and supportive of proposed new clause 33 as I suspect, are many Ministers who have been involved in the Bill.

Vera Baird: Yes, I think that there was some muddle there. I will say a bit more later, but I can confirm now that they are due much sooner than that.
	I want to make it clear that we consider our approach to be the right way forward. As I have done in the past, I commend and cheer on my hon. Friend the Member for North Ayrshire and Arran. She has a fantastic record in her private history of chasing the issue of equal pay, and she has had incredible success. She is obviously highly skilled as well as incredibly committed, and I make no mistake in saying that she speaks with feeling and a high level of knowledge. However, in the past, she has had difficulties-I am well aware of the laboriousness of such legislation and litigation. Over the years she has been contending with this matter, there has been neither the obligation for transparency in the public sector nor the pressure that there will be for transparency in the private sector. To progress very quickly, we need the buy-in of both sides of industry if possible.
	I could rehearse more of the arguments made in Committee, but they have been adequately heard and what I have said summarises them reasonably well. I am anxious to satisfy all parties on our absolute determination that the Bill will, among many, many other things, accelerate the move towards equal pay for women.
	New clause 26, tabled by the Conservative party, would require a more specific position, which is that employment tribunals should order mandatory equal pay audits whenever an equal pay case is lost by an employer. That was presented in a three-clause Bill in the Lords-it was one of the clauses-but was taken apart by Lord Lester, who is not a member of the Labour party but who did a skilful demolition job none the less. The new clause is tokenism and would make little difference to tackling the gender pay gap, not least because its effectiveness depends on a case being won in an employment tribunal.
	Let us look at the employment tribunals. In 2008-09, there were more than 100,000 public sector cases, almost all of which-I cannot say all-involved bodies that had already undertaken equal pay audits under the single status requirement, which has been battling on since 1997. Often the results of equal pay audits are the very reason cases are brought. It would not be sensible for it to be compulsory for a tribunal, in trying to unpick the aftermath of a pay audit, and to ensure that it works and drives the move towards equal pay, to have to order another one. That is the long and short of how nonsensical the proposal is.
	Few private or voluntary sector organisations reach an employment tribunal. In 2008-09-when there were 100,000 public sector cases-there were 1,574 non-public sector cases. There is much to be said about such a small number and the need for things such as representative actions, and I shall come to that in a minute because it makes my point while requiring me to make another one about representative actions. However, the new clause is completely undesirable because it removes any discretion for employment tribunals, which would have to order equal pay audits-that is not what judges are for-in circumstances where they consider them wrong, unnecessary or inappropriate.
	Conceivably, there could be instances of individual cases that do not reflect systemic equal pay problems. One wrong move by a business and a tribunal might have no other option than to order a mandatory equal pay audit across that business, however big it might be. If an employer is found to have breached equal pay law, it should, as a matter of common sense and good management, want to assess what changes it needs to make to avoid further claims, and it will. We oppose the new clause, therefore, and think that it is just a token gesture.
	Let me turn to new clause 4, which is about representative actions and which was also supported, strongly, wholeheartedly and with great power, by the hon. Member for Hornsey and Wood Green (Lynne Featherstone) and my hon. Friend the Member for North Ayrshire and Arran. As I have said throughout, our mind is not closed to the future of representative actions at all. Taking full-time and part-time pay together-that is how we must take them, otherwise we will be putting part-time workers into a less virtuous category-there is a 22 per cent. pay gap, and that simply will not do.
	We understand totally that unequal pay is often systemic. As I have said, there can be isolated cases, but it is often systemic. Sometimes unequal pay is deliberate, but often it is just there and it needs rooting out by transparency. However, that needs to be driven not by some poor isolated individual who has been required to put their whole future and the money at stake and who is sometimes required to summon up the courage to go forward. Rather, we need support for people and better access to justice. We are in no doubt that we must look to do just that.
	However, representative actions in the area of law covered by the Bill have some particular difficulties. We recently carried out research into how representative actions would work for equal pay cases and into the complexities, which are as follows-my hon. Friend is not in her place now, but she will follow them when she reads this. Before I itemise the problems, let me say that there are polarised views on the effectiveness of representative actions. Indeed, not even all the trade unions that are active in equal pay matters-the trade unions from which representatives would be drawn-are at one about how effective the introduction of such measures would be.
	There is a strong school of thought that says that what my hon. Friend talked about-the ability under the current rules to draw out a class action and use it as a testing ground and model-can be beefed up by changes to the rules. Indeed, that approach is already in use and effective. There might be other ways forward; my point is simply that there is no unanimity even among the people who would be the representatives and from whom one would expect the drive to come.
	However, the problems include the extent to which costs should be borne by the losing parties in tribunal cases, which they do not currently; how such cases should be funded; whether claimants in such cases should have to opt in to a representative action or whether they should be assumed to be a part of it unless they opt out; how to resolve a dispute between an individual claimant and the representative party; how damages should be awarded; and how they should be distributed to a successful class of claimants.
	There are a lot more issues to work through with regard to employment tribunals than with regard to the civil courts. Representative actions are permitted in a limited way in the civil courts, so when representative actions are introduced for consumer and financial services cases, for example, we are building on a legal framework. However, there is absolutely no similar mechanism for employment tribunals, so introducing it for such cases would be a departure.
	A further point to make about the complexity is that discrimination cases are often linked to other kinds of cases, such as unfair dismissal cases. We need to consider whether it is sensible just to introduce representative actions for discrimination cases or whether that overlap will cause greater confusion and delay. The Ministry of Justice is doing further work with the Civil Procedure Rule Committee and is trying to develop a toolkit, so that Departments can look at the issues and decide, Department by Department, whether it would be good for access to justice in their areas.
	We recognise that pay discrimination is systemic. We recognise too that there are situations where a number of individuals will want to bring broadly similar claims against a single party. We know that introducing representative actions could bring benefits for individuals, and potentially also for defendants faced with multiple claims. We will look at the issue, and we may well consult in due course. In the meantime, on the understanding that we are researching the issue as far as we can, I invite hon. Members not to press new clause 4.
	As for hypothetical comparators, I think that there has been a slight mix-up on the clause numbering, as clause 64 is now the relevant one, although that does not particularly matter. The clauses reflect our decision to keep the distinction between contractual and non-contractual pay matters for work-related gender discrimination, which means that someone has to identify a comparator of the opposite sex to make an equal pay claim. That has to be a real person.
	We are firmly of the view that accepting new clause 5 would lead to difficult consequences, some of them probably not only unintended but unforeseen. We are obviously determined to expose and address unequal pay; I hope that that can be taken as read. The way to do that, however, is not to increase confusion about how comparisons can be made, but to increase transparency. The tribunal would be asked to conclude from the fact that there is a difference in pay between two people doing work that is not of the same value, that that somehow indicates that two such people doing the same work would be paid differently. In the absence of evidence of direct discrimination, for which we have made new provision in clause 68, we do not see how that conclusion can be reached. Clause 68 does, however, allow claims where there is evidence of direct discrimination in relation to contractual pay, so that is a little gap that we have filled, moving in the direction of the amending provisions.
	There are contrary views on this issue: most of the respondents to our Green Paper supported our position that we should keep the current approach, although the Fawcett Society and the Women's National Commission did not agree. The consequences of allowing a hypothetical comparator could include, for instance, enabling a man in a lower-paid job to seek to equalise his pay with that of another man in a higher-paid job that he asserts is of equal value. A male care assistant could cite a hypothetical female refuse collector as a comparator of work of equal value in order to bring his wages up to the same level as refuse collectors who are male. That is not what the equal pay provisions are for, as they are intended to tackle discrimination between men and women rather than be a mechanism for fair pay-there are different mechanisms for that. Permitting reliance on a hypothetical comparator would encourage that sort of claim and might well bog down tribunals even more; it would take the legislation way out of the territory that it is intended to cover.

Vera Baird: I am grateful for the hon. Gentleman's gratitude. The question of phraseology remains, and I do not think that we are going to accept his phraseology, but if he agrees not to press his amendment, we will reflect and see whether we can reach some understanding.
	Amendment 68 relates to the long-term objective of reducing inequality between the terms of men and women, which should always be regarded as a legitimate aim. Removing pay inequality between men and women is the main goal of some parts of the Bill. However, we do not underestimate the challenges faced by employers dealing with the legacy of pay inequality. Reviews of pay structures such as those that take place now, and will take place more fully following the enactment of the Bill, and restructuring of businesses and new ways of doing work can result in pay discrepancies.
	Clause 66 is intended to encourage employers, employees and their unions to identify and resolve pay inequality by negotiation, which is much better than litigation. Its purpose is to put the legitimacy of that goal beyond doubt. It does not provide an easy get-out for employers, and it will not reduce protection for women. An employer who relies on this factor must always show that the means used are proportionate. However, it is important to make it clear that the best way to achieve the long-term objective of removing inequality is negotiation in circumstances that might otherwise involve real difficulties in relation to pay discrimination.
	I shall now turn to new clauses 11, 21 and 22. The hon. Member for Hornsey and Wood Green and I both said we would revisit the issue in question on Report, and we have done so. It is about the CV survey, which I think I first disclosed in Committee, on how recruitment is conducted. The report following this survey was published in October and it confirms that there is undoubtedly race discrimination in the recruitment process. The report showed that whereas a white applicant had to send an average of nine applications before getting a favourable response-an invitation to have an interview or a telephone call to encourage them-an ethnic minority applicant had to send 16 applications. What to do about the report's findings should be decided by the body that started the ball rolling in the first place: the ethnic minority employment taskforce. It should have met to talk about that last month, in which case I would have told Members what it had discussed. It was unable to meet owing to unforeseen circumstances, but it will meet in the new year.
	The report suggests that such discrimination is most prevalent in small and medium-sized businesses, and it offers two possible reasons for that: first, that such businesses may not use standardised application forms; and secondly, because SMEs tend not to have separate human resources departments with distinct staff whose job it is to ensure that application forms are anonymous. In a business where only two or three people work, for example, it is not at all likely that that would be practical. Although the hon. Lady's amendment is a genuine attempt to deal with this issue, it does not contemplate the possibility that in certain circumstances it may be necessary, and indeed beneficial, to take protected characteristics into account-for instance, for positive action. We will therefore all have to consider what the appropriate policy response is.
	The hon. Lady talked about work being done to combat subliminal discrimination-which caused a good deal of amusement to the hon. Member for Shipley (Philip Davies), as I am sure she can imagine. We know about that, too. The current edition of the Incomes Data Services  Diversity at Work publication says that Ernst and Young has found a learning tool that demonstrates its decision makers' unconscious bias, and how that works. The training that it has piloted has led to a reduction in the gender and ethnicity disparity in the firm's performance rating. Thus good practice of that kind can play a role. Although we have looked for, and found, race discrimination in a new place, that does not necessarily mean that we need a new law to match it. We have not looked for it in order to do nothing about it when we have found it, however, and I invite the hon. Lady to withdraw her amendment on the basis that the taskforce is the best mechanism to drive forward whatever we need to do to get rid of that completely unacceptable discrimination.
	Like our new clause 40, new clauses 21 and 22 would prohibit the use of pre-employment questionnaires in specific circumstances, but we have discussed the essence of this, and the Opposition new clauses do not go as far as our new clause, and do not give the protection that disabled people need, because they make no provision to bring employers to account. There would have to be a tribunal hearing, but just declaring something unlawful does not take the matter very far. Our proposal backs that up by reversing the burden of proof at the tribunal. We therefore think that our new clause is better and stronger; we do not think there is much between our proposals, but if the Opposition were to see fit not to press their proposals to a Division, we would be very content.
	Amendment 70, tabled by the hon. Member for Shipley, is intended to test the reasoning behind the pay secrecy clauses. Clause 74 is intended to ensure protection against victimisation for employees who discuss their pay with colleagues when they are not generally contemplating a claim as such, but want to find out if differences exist that are related to a protected characteristic necessary to help get better gender pay transparency, and also to protect people when they try to find out whether they are being discriminated against in pay terms.
	Rival amendments have been tabled, because the hon. Member for Shipley wants this clause in the bin whereas the hon. Member for Hornsey and Wood Green wants to make it wider. Her proposal gives us a few causes for concern, because she would like to ensure secrecy in discussions with third parties as well as with fellow employees, and that could include a direct competitor. There could be very sound reasons, quite unrelated to discrimination, why employers would not want their levels of pay to be disclosed to a competitor, who might undercut them, undercut their margins or offer the employee more. Protecting a person who takes such an approach would go well away from the aims of the legislation, which are about allowing everyone to know what they are being paid. We do not think it is necessary, as she does, to include a provision to protect someone who seeks advice from a third party. If that third party is a trade union, section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 protects that kind of conversation, and if it is a lawyer, the conversation will be protected by privilege. We think that the hon. Lady's proposal goes too far, and we ask her not to press it to a Division.
	My hon. Friend the Member for Hayes and Harlington (John McDonnell) proposed putting equality reps on a statutory basis. We are very sympathetic to that, because they need facility time, which learning reps and health and safety reps have. As he acknowledged, we have supported trade union equality reps. Unions such as Unison, Unite, the Public and Commercial Services Union and the National Union of Teachers have piloted 15 schemes to demonstrate the value to employers of the work of equality reps in workplaces where there are trade unions. As my hon. Friend said, we acted on the recommendations of the Women and Work Commission. We spent £1.5 million from the union modernisation fund and Government Equalities Office cash to build capacity and to support the evaluation of the effectiveness of the reps. That is where we are now. The funding comes to an end this year, but we hope that by then we will have received an evaluation. That is what we are waiting for from the TUC.

Vera Baird: I do not know. We have been asking for the evaluation for some time. I was anxious to receive it before this stage if that was practicable, but we have not received it: that is the situation. In readiness to receive this evaluation, we have conducted a round of discussions with employers and others, and the opinions we heard were a bit divided. Therefore, we also want to use the evaluation to persuade employers about the benefits, but the long and short of it is that that is what we are waiting for.
	I shall move on to the different issue that my hon. Friends the Members for Hayes and Harlington and for Dover (Gwyn Prosser) have brought before us. Their amendment 34 seeks to remove the power for Ministers to introduce affirmative regulations specifying how part 5 of the Bill, which deals with the "work" provisions, would apply to seafarers and those who work on hovercraft. Without any such regulations, the application of part 5 would be a matter for tribunals and the courts to decide on a case-by-case basis. I cannot imagine that anybody would want that, because it would cause confusion and uncertainty.
	The context in which seafarers undertake their work is different from that of other workers. Many issues relating to ships and their crew are governed by the law of the state where the ship is registered, but others may be governed by the law of the state in whose waters the ship is located. A ship can be constantly moving between waters under the jurisdiction of different states, and might not be operating in the waters of its own flag state. Given that context, we definitely do not want the facts about to whom this part applies and to whom it does not apply to be determined on a case-by-case basis. That is why we need regulations, and why, in due course, we will urge my hon. Friends not to press their amendment, which would stop those regulations from being made.
	The UK is entitled to apply its law to vessels registered in the UK, but international law and custom limit the extent to which the provisions can be applied to non-UK registered vessels even while they are in UK waters. The Equality Bill is completely silent on how part 5 applies generally and regulations must be made to apply it to ships and seafarers in all those locations and circumstances to ensure that seafarers are protected from discrimination at work as and where appropriate. Without the regulations, it would be completely unclear. Everybody wants to see seafarers protected from discrimination, but we must tailor the way in which this is achieved.
	Let me move on to the concern that drives my two hon. Friends to try to remove the regulation-making powers when they clearly appreciate as well as we do that it is important to have certainty in application. I think that the regulation-making power is wide enough to address the issue of differential pay among seafarers.
	It is common practice in the shipping industry for seafarers' pay to reflect the country where they are based and therefore where they are likely to spend their wages. Historically, that has been lawful by reference to nationality in the UK through section 9 of the Race Relations Act 1976, which is repealed by the Equality Bill. I understand my colleagues who are seeking this amendment would like to see differential pay outlawed totally in the UK and are concerned that, by allowing the regulation-making power in the Bill, the Government will replace section 9 or put in pay differentiation in some way.
	It is right to say that the Government must carefully consider the implications of disallowing the practice, including the economic impact, and weigh up the possibility of putting UK employers at a significant commercial disadvantage. That said, the Government are acutely aware of the opposite case and of the strength of feeling against reintroducing even a more narrowly drawn replacement for section 9, or anything like it. So, the Under-Secretary of State for Transport, my hon. Friend the Member for Gillingham (Paul Clark), published draft regulations earlier this week. They offer an insight into how the Government think the provisions in part 5 will apply to seafarers and remain silent-we will return to this-on the issue of differential pay.
	The final regulations will determine the extent to which part 5 applies to seafarers. As published, the work protection would be given to a seafarer working wholly or partly in Great Britain on a UK-registered ship or a seafarer working wholly or partly in Great Britain on a ship flagged to an EEA state other than the UK while it is in UK waters if the seafarer is British, an EEA national or a citizen of a state with corresponding EU law rights, provided that the seafarer has a legal relationship located in Great Britain or has a sufficiently close link with Great Britain. My hon. Friend the Member for Hayes and Harlington asked for some explanation of what a sufficiently close link would be, and I shall try to help with that in a minute.
	The third category to which part 5 would apply under the current regulations is to a seafarer working wholly outside Great Britain on a UK-registered ship if the seafarer is a British citizen or a national of an EEA state or a state with corresponding EU rights, provided that their employment relationship is in Great Britain or, again, has a sufficiently close link. The non-UK and non-EEA states are those that have an associative agreement with the EU. They include, for instance, Nigeria and Guyana, from which, I understand, some seafarers are drawn.
	What counts as a sufficiently close link to bring those second kinds of seafarer under the protection of the Bill depends on an overall balance of a range of factors. However, factors that may be relevant are: whether a person is employed on board a ship where the ship is registered-its flag state; the law under which the employer company is incorporated; where the employer's business is established; where an employee is recruited or hired, or where the contract for employment is concluded; under which territory's law the employment relationship is entered into; which territory's law applies to the whole employment relationship; the jurisdiction under which disputes about employment relationships should be brought; the legal systems to which the two individuals are subject; to which territory's social security system the employee is affiliated; the territory where the employee pays income tax; the nationality and ordinary residence of the employee; and whether the employment involves the performance of sovereign functions, which I do not suppose happens very much.
	My hon. Friends the Member for Hayes and Harlington and for Dover, with whom I had the pleasure of meeting last night with my hon. Friend the Parliamentary Under-Secretary of State for Transport, gave me a set of examples about people working on ships between Aberdeen and Lerwick, and asked whether they would be covered by the regulations as currently drafted and hence protected against that unequal pay. The answer is that one would have to consider all those characteristics.

Vera Baird: So far as I have got, that looks to be correct. My hon. Friend asked for guidance and I have done my limited best to give it. So, that is where we are with differential pay. For the avoidance of doubt, in the draft regulations published by the Under-Secretary there is no reference to pay differentiation, which means that if they were approved by Parliament as they are now, the practice would not be lawful at all. As I understand it, that is a very clear position. My hon. Friend is aware that in the ordinary course of consulting on these regulations, letters have gone out to ask all stakeholders what they think would be the implications of removing that kind of differential pay. I fear that we must await the outcome of that consultation before going forward. I hope that I have given him some comfort, if no more.

Vera Baird: The obvious objection is that putting the regulations in primary legislation means that they cannot be changed without more primary legislation. That is a very laborious process, and the whole point of double-decker legislation is that things can be changed as and when necessary. The judgment is that these matters ought to be set out in regulation: I shall not take the point any further, but my hon. Friend can press it with the Department for Transport. Officials there have accepted the proposal that they should meet to discuss the different legal opinions, and we expect a Minister in the Foreign and Commonwealth Office to consider the matter later on. My hon. Friend the Under-Secretary of State for Transport and I will also be able to help so, on that basis, I hope that the amendments will be withdrawn.
	The hon. Member for Shipley would like to strip away all protection for businesses with fewer than 250 employees.  [ Interruption. ] I am being pressed about the time, but I have a lot of questions to answer. I shall just say to the hon. Gentleman that we are not going to accept his proposal. Most employers are covered already by discrimination law: we intend them to remain that way, and I hope he will withdraw his new clause 36.
	I also hope that the hon. Gentleman will withdraw his new clause 38, which proposes restricting the use of positive action by public authorities. He said that his purpose was to put an end to new burdens but he is barking up the wrong tree, as positive action has been available for a very long time. It is 30 years since the sex and race discrimination Acts were passed: both of them have been very well used, as have the later Acts banning discrimination on grounds of religion or belief, sexual orientation or age. Many public bodies, including the police and fire services and the NHS, use them, and they would not be able to meet their legal obligations to promote equality in race, gender and disability so easily if they could not use positive action. They would not be able to fulfil their responsibilities in respect of all the protected characteristics if they were not able to use positive action.
	It would be very strange to prevent public sector bodies from using positive action when those in the private sector would still be able to use it. Where would that leave a private company delivering a service on behalf of a public authority? I therefore ask the hon. Gentleman to withdraw his new clause 38, on the basis that he has made his point.

Mr. Deputy Speaker: With this it will be convenient to discuss the following: new clause 7- Harassment (sexual orientation)-education and services and public functions-
	'(1) A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect mentioned in subsection (2).
	(2) The purpose or effect is-
	(a) violating B's dignity, and
	(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
	(3) In deciding whether conduct has that effect, each of the following must be taken into account-
	(a) the perception of B;
	(b) the other circumstances of the case;
	(c) whether it is reasonable for the conduct to have that effect.
	(4) The relevant protected characteristic is sexual orientation.
	(5) This section applies to-
	(a) Part 3 (services and public functions) where the service or public function is carried out by a public authority, or on behalf of a public authority, under the terms of a contract with a public authority, or is otherwise a function of a public nature, and
	(b) Part 6 (education).'.
	New clause 8- Harassment (gender reassignment)-education-
	'(1) A person (A) harasses another (B) if-
	(a) A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect mentioned in subsection (2),
	(b) A engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has that purpose or effect, or
	(c) because of B's rejection of or submission to conduct (whether or not of A), A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
	(2) The purpose or effect is-
	(a) violating B's dignity, and
	(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
	(3) In deciding whether conduct has that effect, each of the following must be taken into account-
	(a) the perception of B;
	(b) the other circumstances of the case;
	(c) whether it is reasonable for the conduct to have that effect.
	(4) For the purposes of subsection (1)(c), the conduct is-
	(a) conduct mentioned in subsection (1)(a), or
	(b) conduct mentioned in subsection (1)(b).
	(5) The relevant protected characteristic is gender reassignment.
	(6) This section applies to Part 6 (education).'.
	New clause 9- Harassment (religion or belief)-education and services and public functions-
	'(1) A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect mentioned in subsection (2).
	(2) The purpose or effect is-
	(a) violating B's dignity, and
	(b) creating an intimidating, hostile, degrading or humiliating environment for B.
	(3) In deciding whether conduct has that effect, each of the following must be taken into account-
	(a) the perception of B;
	(b) the other circumstances of the case;
	(c) whether it is reasonable for the conduct to have that effect.
	(4) The relevant protected characteristic is religion or belief.
	(5) This section applies to-
	(a) Part 3 (services and public functions) where the service or public function is carried out by a public authority, or on behalf of a public authority, under the terms of a contract with a public authority, or is otherwise a function of a public nature, and
	(b) Part 6 (education).'.
	New clause 10- Caste-
	'In relation to the protected characteristic of caste-
	(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular caste;
	(b) a reference to persons who share a protected characteristic is a reference to a person of the same caste.'.
	New clause 18- Direct discrimination arising from sexual orientation-
	'A person (A) discriminates against another (B) on grounds of sexual orientation if, because of a manifestation or behaviour connected with B's sexual orientation, A treats B less favourably than A treats or would treat others.'.
	New clause 19- Discrimination by association and perception-
	'A person (A) discriminates against another (B) if A treats B less favourably than A treats or would treat others because-
	(a) A perceives B to have a protected characteristic, or
	(b) B associates with a person (C) who has a protected characteristic.'.
	New clause 30- Caste (No. 2)-
	'(1) If a Minister of the Crown is satisfied that any person is suffering, or has suffered, discrimination, harassment or victimisation on the ground of caste, a Minister of the Crown may by order amend section 4 to provide for the characteristic of caste to be a protected characteristic.
	(2) An order under this section may make such supplementary provision as a Minister of the Crown considers appropriate.
	(3) An order under this section must be made by statutory instrument and is subject to the affirmative procedure.'.
	New clause 31- Religious care homes for the elderly-
	'(1) Subsection (2) applies to a voluntary care home for persons in need of personal care by reason of old age and infirmity that-
	(a) is an organisation of the kind referred to in Schedule 23, paragraph 2(1), or
	(b) acts on behalf of or under the auspices of such an organisation.
	(2) Subject to subsection (3), nothing in this Act shall make it unlawful for such a care home to restrict the provision of its services or facilities to a person on the grounds of his sexual orientation.
	(3) If such a care home restricts the provision of those services or facilities as mentioned in subsection (2), it must at the same time refer the person seeking them to another person who the agency believes provides similar services or facilities to persons of his sexual orientation.
	(4) Subsection (2) permits a restriction only if imposed-
	(a) if it is necessary to comply with the doctrine of the organisation, or
	(b) so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.'.
	New clause 32- Religious adoption and fostering agencies-
	'(1) Subsection (2) applies to a voluntary adoption agency or fostering agency that-
	(a) is an organisation of the kind referred to in Schedule 23, paragraph 2(1), or
	(b) acts on behalf of or under the auspices of such an organisation.
	(2) Subject to subsection (3), nothing in this Act shall make it unlawful for such a voluntary adoption agency or fostering agency to restrict the provision of its services or facilities to a person on the grounds of his sexual orientation.
	(3) If such a voluntary adoption agency or fostering agency restrict the provision of those services or facilities as mentioned in subsection (2), it must at the same time refer the person seeking them to another person who the agency believes provides similar services or facilities to persons of his sexual orientation.
	(4) Subsection (2) permits a restriction only if imposed-
	(a) if it is necessary to comply with the doctrine of the organisation, or
	(b) so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion's followers.'.
	New clause 35- Scottish Gypsy Travellers-
	'A person has the protected characteristic of being a Scottish Gypsy Traveller if they by reason of their common heritage, culture and traditions, that may but need not include a nomadic way of life in Scotland, may reasonably regard themselves as a Scottish Gypsy Traveller as others may reasonably be expected to be aware of.'.
	New clause 43- Caste (No. 3)-
	'(1) Caste includes-
	(a) jati;
	(b) biraderi.
	(2) A person has the protected characteristic of caste if the person is a member of a caste group found within a hierarchical group-based system of social stratification, where both membership and group and individual status are hereditary, ascribed, and permanent.
	(3) In relation to the protected characteristic of caste-
	(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular caste group;
	(b) a reference to persons who share a protected characteristic is a reference to persons of the same caste group.
	(4) The fact that a caste group comprises two or more distinct caste groups does not prevent it from constituting a particular caste group.'.
	Amendment 2, in clause 4, page 4, line 15, at end insert-'caste.'.
	Amendment 53,page 4, line 15, at end insert-'being a Scottish Gypsy Traveller.'.
	Amendment 16, in clause 13, page 6, line 31, leave out 'because of' and insert 'on grounds of'.
	Amendment 187, page 7, line 6, after 'race', insert 'or caste'.
	Government amendment 144.
	Amendment 55, page 7, line 11, leave out paragraph (a).
	Amendment 188, in clause 14, page 7, line 23, at end insert-
	'(aa) caste;'.
	Government amendment 145.
	Amendment 58, page 10, line 1, leave out clause 19.
	Amendment 189, in clause 19, page 10, line 16, at end insert-
	'caste;'.
	Government amendment 149.
	Amendment 190, in clause 24, page 12, line 24, at end insert-
	'(1A) Caste discrimination is-
	(a) discrimination within section 13 because of caste;
	(b) discrimination within section 19 where the relevant protected characteristic is caste.'.
	Government amendments 152 to 154.
	Amendment 191, in clause 25, page 13, line 42, at end insert-
	'caste;'.
	Amendment 194, in clause 34, page 18, line 38, at end insert-
	'(1A) For the purposes of subsection (1)(c), "detriment" may include-
	(a) refusal by A to exercise any power that A has with relation to the premises;
	(b) insistence by A on enforcing any provision of any relevant lease or other agreement.'.
	Government amendments 162 to 165.
	Amendment 72, page 52, line 5, leave out clause 81.
	Amendment 74, page 65, line 8, leave out clauses 104 to 108.
	Amendment 192, in clause 145, page 92, line 6, at end insert-
	'caste;'.
	Amendment 102, in clause 188, page 115, line 36, leave out from 'aim' to end of line 38.
	Amendment 196, in clause 192, page 117, line 35, at end insert-
	'(A1) It is not a contravention of this Act for-
	(a) a person or organisation which provides tourism or holiday services to place age limits on group holidays or holidays catering for people of particular ages;
	(b) a person or organisation to design and provide financial products for specific market segments qualified by age or age groups;
	(c) a person or organisation to provide insurance programmes where the calculations of the premiums for such programmes are based on reasonable evidence of the underlying difference in risk based on the purchaser's age or age group.'.
	Government amendment 177.
	Amendment 119, in schedule 3, page 134, line 16, at end insert-
	'(3) Nothing in this paragraph is to be taken as a requirement for the same number of places to be provided for both boys and girls.'.
	Government amendment 179.
	Amendment 120, page 139, line 22, leave out paragraph (e).
	Amendment 121, page 140, line 1, after 'effective', insert 'or appropriate'.
	Amendment 122, page 140, line 7, after 'effective', insert 'or appropriate'.
	Amendment 123, in schedule 5, page 147, line 30, leave out sub-paragraph (3).
	Amendment 197, in schedule 9, page 161, line 27, at end insert ', and
	(d) the requirement is a genuine and determining one.'.
	Amendment 37, page 162, line 13, leave out sub-paragraph (8).
	Amendment 130, page 167, line 4, leave out from 'leave' to end of line 43.
	Amendment 132, page 178, line 28, at end insert-
	 'Co-educational institutions turning single sex3A The responsible body of a co-educational school does not contravene this Act so far as relating to sex discrimination if it is a co-educational school deciding to alter its admission arrangements so that the school will be a single sex school.'.
	Government amendment 186.
	Amendment 14, in schedule 22, in page 210, line 42, leave out sub-sub-paragraphs (a) and (b).
	Amendment 15, page 211, line 2, at end insert 'except in relation to academy schools'.
	Amendment 198, in schedule 23, page 212, line 11, leave out 'an organisation' and insert 'activities'.
	Amendment 199, page 212, line 12, at end insert-
	'(2A) This paragraph does not apply to any activity done-
	(a) on behalf of a public authority, and
	(b) under the terms of a contract between the organisation and the public authority.'.
	Amendment 200, page 213, line 9, after 'orientation', insert 'or religion'.
	Amendment 31, in schedule 27, page 223, line 32, at end insert-
	
		
			 'School Standards and Framework Act 1998 Section 58(6) and (7). Section 60(4) and (5).'. 
		
	
	Amendment 193, in schedule 28, in page 225, line 14, at end insert -
	
		
			 'Caste Section [Caste (No.3)] 
			 Caste discrimination Section 24 (1A)'.

Vera Baird: These are miscellaneous but important new clauses and amendments. Many of them were tabled by the Opposition, but I shall start with the Government ones.
	New clause 41 and the associated amendment support the Bill's aim of clarifying the legislation, and we have listened to points made by hon. Members in Committee. The new clause is needed also in consequence of clause 14, which was added in Committee and protects people from dual discrimination.
	The amendments are necessary to ensure that, in cases of direct or dual discrimination, the alleged discriminator cannot argue that they are not liable because they share the protected characteristic. Without the amendments a gay man, for example, might dispel an allegation that he had discriminated against another gay man because he himself is gay. That coincidence is irrelevant under the Bill.
	We discussed the matter in the 8th sitting of the Committee. The key question was whether, by stating overtly the long established convention that it is immaterial in a case of direct discrimination that the alleged discriminator is of the same religion or belief as the victim, this cast doubt on the situation for other protected characteristics. Our starting point was that it should not have cast doubt because we have merely replicated the law as it applies, uniquely, to religion or belief, and we thought that parallel issues were unlikely to arise. We then considered that the scope for intra-religious discrimination required us to take the action that we have taken.
	As a presentational matter, the difference with this Bill is that we now have a single clause setting out the definition of direct discrimination and the qualifications to it, for all the protected strands, but unlike some of the other caveats and elaborations in the clause for particular strands, subsection (6) could, to the unfamiliar, raise questions about where this leaves other characteristics, in cases in which the claimant and the discriminator share the protected characteristic. We do not think that real problems will arise.
	We have listened to the arguments made by the hon. Member for Oxford, West and Abingdon (Dr. Harris), though, when he advanced the case for an amendment, and we have taken his argument pretty well on board. There are two more points that I could make in favour of these changes, but as he advocated them very strongly and we have accepted them, he will be pleased, I hope, and we need not elaborate why we did so.
	Clause 14 is about dual discrimination, allowing somebody who has been treated less favourably because of a combination of two protected characteristics to bring a claim. That was introduced towards the end of the Committee stage. The amendments today will make it clearer how the provisions work. There are many consequential amendments that we could not pick up in Committee because the clauses affected had already been debated by the time we introduced the new clause.
	On amendment 145 to clause 14, the basic principle is that although the conduct alleged in a dual discrimination claim must be prohibited in respect of each of the protected characteristics in the combination, a claimant does not have to prove that he or she was treated less favourably because of each of them in turn. However, where an exception or justification applies to the conduct which would mean that it was not unlawful direct discrimination because of one or both of the protected characteristics, a dual discrimination claim cannot succeed.
	For example, discrimination in employment is prohibited in respect of both sex and race. That would mean that a black man may bring a claim of dual discrimination if he is denied a job because of the combination of his sex and race. He would not need to be able to prove that he was treated less favourably because of his sex and because of his race separately. However, if the employer could show that it is an occupational requirement for the job that it should be held by a woman, and therefore that denying the job to a man would not be unlawful, the claim would not succeed. This is not a change of policy, but it is important clarification because there are provisions in the Bill that allow genuine occupational exemptions of this kind. We have put in place amendments to capture those justifications and exceptions from any other Act as well.
	In addition, clause 14 relates to cases of disability discrimination in education which are heard by the special educational needs and disability tribunals or equivalent specialist tribunals. We are excluding from the scope of clause 14 circumstances involving discrimination in education because of disability. That is because the case of someone being treated less favourably by a school, owing to the combination of disability and another protected characteristic, would be met by a single-strand claim in the specialist tribunal. It is better to defer to the expertise of those exclusive jurisdictional regimes than to undermine them by sending combined claims out of their specialist area to the civil courts. We are not stopping a remedy; we are providing the one that we think best fits.
	We need to make that amendment to clause 14 to reflect the changes to the rest of the clause, but they are quite techie and detailed and I do not feel that people will be disadvantaged if I do not set out exactly why we need all the consequential amendments. By and large, there was cross-party support for dual discrimination, and it follows that, because the measure was introduced late in the day, we will have to put in shape all prior clauses in order to acknowledge it.
	Amendments 152 to 154 are about clarifying "harassment" in clause 25. Amendment 152 would replace the bulk of subsections (1) and (2) with some more straightforward propositions. Currently, subsection (1)(b) defines sexual harassment by copying the wording of European directives, namely whereby somebody
	"engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature".
	We replicated that wording when we amended the Sex Discrimination Act 1975 to implement the relevant directive, but it is difficult to identify any sexual harassment that would not be verbal, non-verbal or physical, therefore those words were probably always superfluous. The wording has not been a problem with the 1975 Act, but in the more far-reaching Equality Bill it could cast doubt on broader references to "conduct".
	The second matter that amendment 152 would address is an ambiguity in clause 25(4). "Harassment" in clause 25 encompasses three kinds of conduct: first, unwanted conduct in relation to all the protected characteristics, but not pregnancy, maternity, marriage and civil partnership; secondly, sexual harassment; and thirdly, less favourable treatment because a person has rejected or submitted to either sexual harassment or harassment related to sex or gender reassignment.
	Clause 25(4) covers the third form. The provision is ambiguous and we need to clarify it to ensure that the conduct that is submitted to or rejected has the purpose or effect of violating the complainant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The ambiguity arises because of the way in which the three forms of harassment are described, so we have, as it were, restructured the provision.
	Amendment 179 would amend schedule 3, which relates to part 3 of the Bill, on services and public functions. The issue is about the provision of services to employees and the ways in which they are to be treated as a section of the public. That is relatively straightforward when it involves the arrangement by employers of such services for employees as gym membership, but when the employer discriminates in providing access to that service, the employer can be held liable. Employers should ensure that all employees can access the service without being discriminated against, but that becomes more difficult when it is applied to group financial products such as group insurance policies-arrangements between an employer and an insurer for the benefit of the employees, their partners and so on.
	Group personal pensions are arranged by the employer for the employee as part of their overall package. They are entered into on the basis not of individual characteristics, but of the employer's business and the overall profile of their employees. Currently, employers are responsible for those schemes, as they are part of the employment relationship, and the amendment would remove from the scope of the provisions services group insurance schemes that are arranged in that way. It is very important that I mention that, as it is a change of that kind.
	Amendment 186 is a purely technical amendment, so let me bother the House with it no longer. I look forward to hearing from the hon. Member for Forest of Dean (Mr. Harper) about the Conservative new clauses.

David Burrowes: Does my hon. Friend share the concern of a wide spread of Christian denominations, from the Church of England through to the Fellowship of Independent Evangelical Churches, which do not understand why the Government have departed from their position in the Employment Equality (Sexual Orientation) Regulations 2003? In the 2004 Amicus case, the Government said that they were engaged in
	"striking a delicate balance between the employment rights of gay and lesbian people, and the right of religious groups to freedom of religion",
	and that they were
	"concerned it would lead to litigation in tribunals about the extent to which requirements dictated by doctrine or the religious convictions of followers could legitimately limit working for an organised religion"
	Is it not the case that the provisions will affect that balance and strike at the heart of religious liberty?

Mark Harper: The hon. Gentleman makes a good point. The European Commission openly said that it had written a reasoned opinion and sent it to the United Kingdom. However, I understand-I am sure that the Solicitor-General will correct me if I am wrong-that when various organisations have tried to get hold of a copy, officials from the Government Equalities Office have declined to let them have one on the grounds that such opinions are confidential to the Government. It is helpful that we now have a copy of that reasoned opinion from a source in Brussels, but it is disappointing that it was not released by the Government. It should be placed in the Library, so that all Members can see it. It would be helpful if the Solicitor-General can let me know when she responds to this debate-or now, if she wants to intervene-why it was felt necessary to keep that secret.
	I understand that the reasoned opinion states that the Government have given an undertaking to remedy the alleged defect that the European Commission says is in our existing law, but the Solicitor-General has just confirmed to the House that the law is not being changed at all. I do not see how we can square that circle. The view that the hon. Member for Oxford, West and Abingdon and I share-that the measure has been narrowed-is the right one. We might differ on how welcome that narrowing is, but what he and I have set out, as well as the Government's response to the European Commission, all appear to confirm that. If there has indeed been such a narrowing, as we think there has, we shall support amendment 37, standing in the name of the hon. Member for Stroud (Mr. Drew), which seeks to extract that definition from the Bill.

David Drew: This will be a short speech, as we have already covered much of the ground. I intend to press amendment 37 to the vote. The amendment is straightforward in the sense that it simply removes paragraph 2(8) from schedule 9. What those who feel strongly about this want to see is effectively a return to the status quo. We have just had an argument about whether and why the Government's interpretation is narrow. The simple answer is that even if we argued crucially that ministers as part of organised religion have certain protections-in some cases those protections have been found wanting by the courts under existing legislation-others involved in religion do not. It is absolutely right to protect people when they are going about doing something that in any other walk of life they would feel entirely free to do.
	Several examples have been given. The hon. Member for South-West Bedfordshire (Andrew Selous) mentioned political parties. We saw a real live example involving them when a peer who had taken the Labour Whip until the last election had it removed from him because he had happened to make a voluntary donation to a friend who was a member of another party. Some of us may have misgivings about that, but it happened, and that individual had no recourse because he was seen to have been disloyal to the political party that he served as a parliamentarian.
	I believe, as do the other Members who signed amendment 37, that that safeguard would not apply to religion, and we feel strongly that there is a need for protection. We are not asking for a change in the law; we are merely asking for the status quo to be reinforced. It is irrelevant to us whether the narrowing of the definition is a result of the Government's own inclination or of pressure from the European Union. The simple fact is that if sub-paragraph (8) is removed, we shall feel that the position has been clarified.
	This issue has been a source of debate not only here but in the Public Bill Committee, on which I, like others, was pleased to serve. To be fair to the Solicitor-General, I should say that we were given some clarification, and some of us felt that it would go a long way towards making clear that people in organised religions would be given rights and protections. However, the Government seem to have moved in the other direction and weakened those protections, which is why I tabled amendment 37.
	The strength of public opinion was demonstrated in a letter sent to the Minister for Women and Equality saying that members of many Churches and other religions-for this concerns not just the Christian community, but a number of religions-felt that if the provision were passed in its current form, it would bring about a deleterious change that would threaten to prevent those involved in organised religion from going about their everyday business.
	I hope that the Government will think again and will agree to take us back to where we thought we were-or, at least, the position to which we thought they were moving in Committee-rather than taking an even harder line and restricting even further the freedom of operation of people who, in good faith, pursue their religious convictions. I tabled the amendment because I believe in freedom of conscience. I do not believe that that there should be a right to discriminate against people who are, for instance, gay or disabled, but I do believe that people have a right to work with fellow members of their faith. I believe that that right should be recognised, and should not be undermined by people who come in and say-as happens too often nowadays-that they want exactly the same rights as members of organised religions whose faith they may not share and whose goals they may not wish to pursue.
	I hope that the Solicitor-General will consider amendment 37 carefully. It seems to have attracted support from both sides of the House. I hope that, even at this late stage-I am sure that those in the other place will give the amendment careful attention if it is not accepted here-we can obtain clarification and stop the narrowing of the rights of members of organised religions. I should be delighted, in due course, to press the amendment to a vote.

Evan Harris: If their job is promoting and explaining the doctrine of religion, and if their employment wholly or mainly involves doing that, theirs is a teaching role rather than one of organising activities and doing other pastoral work that youth workers do. I think that such a role would fall clearly within paragraph 2(8)(b) of schedule 9, and he should be reassured. It is not in our interests to interfere with the right of religious organisations, within this exemption, to ensure that those promoting and explaining the doctrine are not subject to gender or sexual orientation requirements. I hope that he accepts my good faith on that issue.

David Drew: I am grateful to the hon. Gentleman for giving way, although we disagree about whether sexual orientation is the only issue here. However, does he agree that Mr. Justice Richards did not say in his judgment that the narrowing of the definition by the European Commission was necessarily the right way to go? Clearly it is a complicated judgement, but the High Court is at variance with the Commission, and that is why some of us question why the Commission's opinion is considered to be sacrosanct.

Michael Howard: Alas, the Solicitor-General is not prepared to help the House in that way, so I fear I must continue.
	Very many of my constituents' jobs depend on the continuing success of Saga. That continuing success is called into question by the provisions of the Bill as it stands. Saga has built its highly successful business on niche marketing and exclusively servicing the needs of people aged 50 and over. Last year it provided a range of services to some 2.7 million people. Its robust and highly popular brand is based on trust, quality, dependability and value for older people. It focuses on understanding and then designing bespoke services to meet the changing needs and demands of its target market of people aged over 50 in the UK, a demographic group consisting of about half the electorate, and forecast to grow from 21 million today to 25 million by 2020. It does not design or market products and services to other age groups.
	Saga, of course, welcomes the principles behind the Bill, as do I, and supports the measures to combat unfair discrimination that denies people the ability to live life to the full, but as I say, the Bill as it stands risks negatively affecting its customers' ability to buy the holidays that they want and the financial and other services that they need at a competitive price. Although I refer in these remarks to Saga, I have no doubt that other companies will suffer in a similar fashion if the Bill is not amended or secondary legislation is not introduced.
	Saga's insurance business, for example, if forced to offer premiums to all age groups, would become less competitive for the over-50s because they would have to bear the extra costs of quotations for the under-50s. Understanding older savers means that Saga can offer better terms. Its holiday business currently serves only the over-50s, and the popularity and enjoyment of its holidays depends in part on their being exclusive to the over-50s, rather than open to all age groups.
	Specialist advice services for long-term care funding and other services such as Saga Independent Living, which offers home care services, provide relevant and targeted training for staff that concentrates on the particular needs of elderly clients, such as special dementia training. It could not offer the service to all age groups without impairing the bespoke and tailored service that it has developed.
	Research suggests-I will not go into the details of the research, although I have it available-that people are perfectly happy for there to be special offers and products tailored for particular age groups, such as discounted tickets for cinema or leisure facilities, cheap days at DIY stores, concessionary rates for hairdressing and so on. Indeed, the Government themselves seem to follow those principles. The enhanced ISA allowances for older people in the 2009 Budget, and public transport travel concessions such as the national free bus pass and the older person's or younger person's railcard bear witness to the fact that the principle is accepted by Government themselves.
	In their Green Paper the Government responded to the points put by Saga in the consultation exercise by setting out three tests for any legislation on age discrimination. They said that
	"it must be a proportionate response to a real problem and not create unnecessary burdens on the private, public or voluntary sectors;
	it must not have the unintended consequence of prohibiting positive benefits for either younger or older people, such as youth clubs or clubs for older people, holidays catering for people of particular ages, or concessions and discounts which help younger or older people;"
	and
	"it must pass a 'common sense' test."
	The Green Paper sensibly and specifically accepted the desirability of niche marketing. It said:
	"There will always be a need for age-specific facilities and services."
	Indeed, it said- [ Interruption. ] I am very happy to give way to the Solicitor-General, because she looks as though she is about to rise.

Ann Widdecombe: I will not waste time. I shall speak to amendment 32, standing in my name, and to amendment 31, standing in the name of the hon. Member for Heywood and Middleton (Jim Dobbin), who apologises for not being able to be here today.
	I believe it is fundamental to a democratic society that nobody should be obliged to affirm, participate in, make money out of or promote something that is directly contrary to their conscience or to their religious belief. There is no way that the state should ever compel somebody actively to facilitate something that is against their conscience. Other than in the most extraordinary or deeply extreme circumstances-for example, where there are international hostilities and conscription of the populace-a democratic society recognises the right of people to say, "I will not do that because it is against my conscience."
	Similarly, a democratic society recognises the right of organisations and groups of people to get together and to set themselves up for the purposes of carrying out something that is based on a community of their belief, which can mean providing services based on that belief. A Catholic adoption agency is set up to place children-sometimes very hard-to-place children-with families, and it is against Catholic teaching, for example, to recognise homosexual unions as equivalent to marriage. By obliging, or attempting to oblige, a Catholic adoption agency to place children with homosexual couples we are effectively suppressing the free practice of religious belief. I have been contacted by a very small Catholic adoption agency which, despite being small, places 10 very hard-to-place children with families each year. Having been in existence for some 40 years, it has placed hundreds of children with families. That agency now says, and we should all be aware of it:
	"The Charity has suspended the recruitment of new prospective adoptive parents to ensure that the Charity is not in breach of the Regulations or in breach of the tenets of the Church. The Charity cannot continue this suspension of service and will be forced to cease to provide Adoption Services."
	That charity is not alone. Westminster Children's Society has closed. Catholic Care is going to close. Other societies are trying to fight but are being defeated in the courts. Only in Scotland has one Catholic agency managed to get a ruling from the court that enables it to continue to place children in accordance with the tenets of the Church. The only other survivor at the moment is an evangelical adoption agency in the north-east that is fighting its corner and saying that it will continue to place children in accordance with the principles that it holds. Of course, Catholic adoption agencies may well supply services to local authorities, but local authorities choose to buy those services; they are not compelled to do so. The adoption agency should therefore not be compelled to go against its tenets. It is not saying, "We want to continue to receive public funding". It is saying, "We want to continue to be able to place children according to the principles that our religion teaches." That is what we are preventing it from doing in law, in Britain, in the 21st century.
	A free society should accommodate beliefs and respect the right of minorities to hold those beliefs, set up organisations and live their lives according to those beliefs, particularly when they are based not on rejecting a person for being something but on what they actually do. The agency is refusing to place children with homosexual couples who have formed a union that the Church teaches to be wrong. Similarly, for care homes, the problem is obliging the Church to provide double rooms in which unions may take place that are against Catholic teaching. It is not the individual-
	 Debate interrupted (Programme Order, 11 May 2009).
	 The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.
	 Question agreed to.
	 New clause 41 accordingly read a Second time, and added to the Bill.
	 The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

Amendments made: 143, page 6, line 36, leave out from 'disability,' to end of line 2 on page 7 and insert
	'and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.'.
	144, page 7, line 8, leave out subsection (6).- (Vera Baird.)

Amendments made: 146, page 8, line 15, leave out from 'B' to ', and' in line 16 and insert
	'unfavourably because of something arising in consequence of B's disability'.
	147, page 8, line 21, leave out subsection (3).- (Vera Baird.)

Amendments made: 149, page 12, line 12, after '13,' insert '14,'.
	150, page 12, line 12, leave out '19 or 20' and insert 'or 19'.
	151, page 12, line 14, leave out subsection (2) and insert-
	'( ) The circumstances relating to a case include a person's abilities if-
	(a) on a comparison for the purposes of section 13, the protected characteristic is disability;
	(b) on a comparison for the purposes of section 14, one of the protected characteristics in the combination is disability.'.- (Vera Baird.)

Amendments made: 152, page 13, line 21, leave out from 'characteristic' to end of line 31 and insert ', and
	(b) the conduct has the purpose or effect of-
	(i) violating B's dignity, or
	(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
	(2) A also harasses B if-
	(a) A engages in unwanted conduct of a sexual nature, and
	(b) the conduct has the purpose or effect referred to in subsection (1)(b).
	(3) A also harasses B if-
	(a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
	(b) the conduct has the purpose or effect referred to in subsection (1)(b), and
	(c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.'.
	153, page 13, line 32, leave out 'that effect' and insert
	'the effect referred to in subsection (1)(b)'.
	154, page 13, line 37, leave out subsection (4).- (Vera Baird.)

Amendments made: 155, page 16, line 3, leave out 'except section 28(6)' and insert 'subject to subsection (2)'.
	156, page 16, line 7, leave out subsection (2) and insert-
	'(2) Section 28(6) applies in relation to the matters referred to in paragraphs (a) and (b) of subsection (1); but in so far as it relates to disability discrimination, section 28(6) applies to those matters only in such circumstances as are prescribed.'.- (Vera Baird.)

Amendments made: 157, page 19, line 29, leave out paragraph (b).
	158, page 19, line 32, leave out 'of a tenement'.
	159, page 19, line 36, leave out 'of a tenement'.
	160, page 19, line 42, leave out paragraph (c).- (Vera Baird.)

Clause 103
	 — 
	interpretation and exceptions

Amendments made: 168, page 89, line 21, at end insert-
	'( ) the contract relates to the particular complaint,'.
	169, page 90, line 30, leave out subsection (10).- (Vera Baird.)

Clause 164
	 — 
	assistance dogs in taxis: exemption certificates

Clause 188
	 — 
	charities

Clause 189
	 — 
	charities: supplementary

Clause 192
	 — 
	age

Clause 196
	 — 
	exercise of power

Amendments made: 174, page 120, line 14 , after 'section', insert '[Adjustments to common parts in Scotland],'.
	175, page 120, line 17, after '192', insert 'or 205'.
	176, page 120, line 17, at end insert-
	'( ) In the case of section 205, provision by virtue of subsection (4)(b) may be included in a separate order from the order that provides for the commencement to which the provision relates; and, for that purpose, it does not matter-
	(a) whether the order providing for the commencement includes provision by virtue of subsection (4)(b);
	(b) whether the commencement has taken place.'.- (Vera Baird.)

Clause 197
	 — 
	ministers of the crown

Clause 199
	 — 
	the Scottish ministers

Schedule 3
	 — 
	services and public functions: exceptions

Schedule 4
	 — 
	premises: reasonable adjustments

Amendments made: 180, page 145, line 32 , leave out 'or, in Scotland, an owner of the premises'.
	181, page 146, line 1, leave out from beginning to 'all' in line 3.
	182, page 147, line 5, leave out 'or, in Scotland, the owner of the premises'.- (Vera Baird.)

Schedule 9
	 — 
	Work: Exceptions

John McDonnell: On a point of order, Mr. Deputy Speaker. May I use this point of order to place on the record for those who have been involved in the campaign to obtain decent wages for seafarers and to tackle poverty pay on British ships how disappointed a large number of Members were that we were denied the opportunity today even to vote on the matter, despite a lengthy debate? I think it is a disgrace to the House, and it undermines the whole concept of, and belief in, democracy in this country that we cannot address such a crucial issue as the poverty pay of seafarers in this country.

Mr. Deputy Speaker: The right hon. Lady must know that she cannot plot Mr. Speaker's course on these matters. She must know that a programme motion was put together and was agreed by the House.  [Interruption.] Order. It would not be the first occasion on which the House has felt a little frustrated that there has been insufficient time.

Theresa May: I note my hon. Friend's concern about the lack of time allowed to debate certain aspects of the Bill, but I am sure that members of another place will be taking particular note of those aspects of the Bill that have not been properly debated and scrutinised in this House. It would not be appropriate to vote against the Bill purely on that procedural point. There are aspects of it with which I do not agree, although I do agree with a lot of it.

Theresa May: I have to tell the hon. and learned Lady that it was only after we had pressed them on this point that the Government were willing to make any movement. There is still concern about the matter outside this House: I am sure that the other place will want to return to it, and there are also problems with the regulations on age-related discrimination.
	Equality is not just for the good times. We all want to ensure that equality and fairness drive what we do, but we must recognise that equality has been given a bad name in recent years, with many people thinking that it is something given to others and not to them.
	We are clear that equality should never be the enemy of common sense. It should not get in the way of businesses, communities or the public sector, but instead it should help them to work better. That is the approach that we have taken, and it is the one that we will continue to take.

David Heath: But not amended by the House.  [Interruption.] I am sorry, but if the hon. Gentleman did not like this, he should have made that point at the time when the statute was passed, not now. It is set out clearly.

Ann Widdecombe: We are witnessing is a very sad exhibition of very unworthy tactics. Unfortunately, all this will do is to compound the reputation that we already have of being in a muddle, and of being untrustworthy in how we handle this wider issue. A motion, of which we all had due notice, was on the Order Paper, and you, Mr. Speaker, had selected an amendment, which means that you considered that amendment to be in order and worthy of debate in this House. Admire as I may anybody who can use Erskine May as the hon. Member for Somerton and Frome (Mr. Heath) has just done, despite my admiration for his technical achievement in that regard, I think it goes entirely against the democracy of this Chamber when we cannot debate a motion that has been fairly put down, of which we have had notice, and to which you, Mr. Speaker, have approved an amendment for debate. If we vote that this be not now put, the ridicule that we will receive in tomorrow's newspapers will speak for itself.

Mr. Speaker: It is in keeping with the hon. Gentleman's long experience of this House that he should use that opportunity to make a second point of order. He has exhorted me to do two things: to think and to look at the matter. I think I have to say, in respect of the first, that it is not the obligation of the Chair to think. However, it is perfectly reasonable for him to invite me to look at the matter, and I am always happy to have my eyes open as he advises that I should. Beyond that, the safest thing that I can say is that he has put his views on the record with his customary force and élan.

Mr. Speaker: What I would say in response to the right hon. Gentleman's point of order is that I have already said what the consequences of particular votes on given propositions would be. That observation from me is on the record, and it would not be seemly now to go beyond that, but he has, in his point of order, put his views on behalf of the official Opposition very explicitly on the record for others to see. We must now vote on the main motion.
	 Main Question put accordingly and agreed to.
	 Resolved,
	That an humble Address be presented to Her Majesty, praying that Her Majesty will appoint Professor Sir Ian Kennedy to the office of Chair of the Independent Parliamentary Standards Authority, and the Rt. Hon. Lord Justice Scott Baker, Jackie Ballard, Ken Olisa and Professor Isobel Sharp to the office of ordinary member of the Independent Parliamentary Standards Authority.

Jeremy Corbyn: I am very pleased to have secured this Adjournment debate on the Whittington hospital. All my parliamentary neighbours-my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson), my hon. Friend the Member for Islington, South and Finsbury (Emily Thornberry) and the hon. Member for Hornsey and Wood Green (Lynne Featherstone)-wish either to intervene on my speech or to contribute to the debate. Like me, they all very much value our local hospital and want it to succeed and to continue in its present form. We all want to lift what I believe to be the threat that is hanging over it at the present time.
	I have represented Islington, North since 1983, and have had numerous dealings with the hospital. I have been a patient there, as have my children, and I have been to the hospital many times, either to visit people or to have regular discussions with its successive chairs and chief executives about how it is run. It is a very successful local hospital. It treats a large number of patients, serving roughly 250,000 people in the boroughs of Islington and Haringey and in parts of Camden and Barnet. It has been the beneficiary of a very large amount of investment over the past few years, with £30 million being invested in a new wing. That wing is now open and is very successful. It is very well run and of a very high standard, and the hospital has been free from MRSA for a very long time. It is a successful hospital of which we can all be proud, and that is the message that we want to get across.
	The hospital employs 2,000 staff and has 400 beds. Last year, it treated 20,000 in-patients, 16,000 day cases and 233,000 out-patients. It delivered 3,683 babies and, crucially, it treated 80,000 people in its accident and emergency department. It also has a very successful and well run maternity and labour unit. The hospital has a neonatal intensive care unit, and we are rightly proud of its new A and E department, which deals particularly with children. This is a hospital that serves its local community and we want it to continue to do so. That is the point of tonight's debate.
	The health service is undergoing one of its sporadic bouts of internal planning and reconfiguration, which is where the concerns come from. We are part of the north central planning area, which includes Camden, Islington, Haringey, Barnet and Enfield-all densely populated, all with rapidly rising populations, all busy areas and all surrounded by major railways, roads and facilities. For example, a short distance away from the Whittington is the Arsenal stadium, which hosts 60,000 people every fortnight, and there are obviously major roads such as the north circular and the A1, which runs virtually in front of the hospital.
	The concerns arose on 19 November, when a story appeared in the local paper, the  Islington Gazette, that
	"in a massive reorganisation of London's NHS, every hospital in the boroughs of Islington, Camden, Haringey, Enfield and Barnet will be categorised either as a 'local', 'major acute' or 'specialist'. The Whittington will almost definitely be downgraded to a 'local' hospital."
	An internal letter then also appeared from NHS Islington, which seemed to say that there was a question mark over the future of the hospital's A and E department and the intensive care unit. I believe that some of my parliamentary colleagues intend to refer to that when they speak a little later in this short but very important debate.
	Since the story came out, I have had numerous contacts with the hospital. I have spoken at some length with the primary care trust for Islington, which is also involved in the commissioning authority for the north central area. The more discussions I have with more people, the more concerned and alarmed I become. I also discovered during those discussions that a company called Participate has been retained by the NHS to undertake a consultation exercise, which, unfortunately, has so far taken place as an internal private focus group of some sort, as I understand it. I certainly was not invited to attend it. I have checked with the local authority and parliamentary neighbours, and I am not quite sure who was invited, but it certainly was not any of us. That has caused understandable concern.
	If the hospital's future is in any doubt, I want to know what attitude the Government will take, what pressure they will put on NHS London and what they see as the future configuration of health care facilities in London, and I say that for two reasons. An accident and emergency unit is the heart of a hospital. Obviously, with an A and E unit and an intensive therapy unit, anyone who suffers any kind of accident, injury or whatever else can be treated very quickly. Major surgery can take place in other parts of the hospital because there is an A and E unit as a back-up facility. That is very important: clearly, if the back-up facility is lost, the possibilities of major elective surgery are removed from the hospital, and we begin to see a downgrading and, ultimately, the hospital's closure.
	At the risk of sounding terminally boring, I would remind the House that I was first elected here in 1983. The first letter that I received from a Minister-I was really chuffed to get one from a Minister-was from the former Health Minister, Brian Mawhinney, who wrote to me to say that previous assurances given to my predecessor that the closure of the casualty unit, as it was then called, at the Royal Northern hospital would not lead to the hospital's closure were hereby withdrawn. Indeed, the hospital was duly closed. Those who have long memories see what is happening as part of a trajectory that will end with the Whittington hospital's closure.
	Arguments have been put that the casualty units are all very close together, so a closure is okay; it does not matter. Well, it does matter. It matters because of the safety of the people who live around that area, the safety of the community and the ability of the NHS, which we are all very proud of, to provide services free at the point of use for people who desperately need them.

Lynne Featherstone: I congratulate the hon. Member for Islington, North (Jeremy Corbyn) on securing this vital, urgent and timely debate. He put his case-our case-exceptionally well, because what is true in Islington, North is true in Haringey and in Hornsey and Wood Green.
	I first learned about the possible closure because I broke my toe-these things happen-and went to the Whittington hospital, as one does. A letter was leaked to me, and that letter was very explicit about all four options for the hospital's future. It was sent by Rachel Tyndall from the north central London sector to all the chief executive officers and medical directors of the relevant hospitals, and all four options showed that the Whittington would have no emergency take in future. That is how it was. As soon as the letter went public, however, it was retracted-to an extent-and became a proposal for local hospital designation, which would mean a reduction in services. There certainly would not be 24-hour care; there certainly would not be emergency care; and the hospital certainly would not retain the intensive therapy units; but there might be urgent care of some sort provided.
	The proposals have become mushed up with merger talks and service rationalisation, which I accept can be sensible. If the Royal Free hospital and the Whittington hospital both undertake kidney and liver treatment, one could do kidneys and one could do livers. That treatment is not urgent, however, and it does not need to be dealt with in seconds, as accident and emergency cases do.
	The Liberal Democrat and Labour parties on Haringey council have passed a motion to keep the Whittington open. Other services may be dealt with separately, but this issue is all mixed up with the Darzi plan and the proposals on specialist trauma centres throughout London. Interestingly, the plan says that local hospital designation, which is the designation outlined in the second letter, means that one can retain 24-hour accident and emergency care. We should make no mistake: the issue is about budget cuts.
	Local people have responded, and I had more than 1,000 signatures to the petition in the first 48 hours, which was an extraordinary response. They want their local A and E service, and it is absolutely vital that it is retained. Although is not like any other service provided by the hospital, it is important, as the hon. Gentleman said, that its other services are not diminished, because otherwise, the Whittington will wither on the vine. It cannot have escaped people's notice that the land on which it sits is worth a fortune. I do not want to take up any more time, so without adding anything further I thank the hon. Gentleman for letting me speak in his debate.

Jeremy Corbyn: Will the Minister confirm that nothing in the plans for the future of the NHS includes the removal of 24-hour accident and emergency services where they are clearly identified as being necessary and vital in an area of rising population with an extremely large day-time transient population who obviously need to have access to A and E just like everybody else?